Agnita Vialva v Checkley McMillan

Vialva v McMillan 2006 NY Slip Op 05622 [31 AD3d 536] July 11, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

Agnita Vialva, Respondent,
v
Checkley McMillan, Appellant.

—[*1]In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated August 17, 2005, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The Supreme Court correctly denied the defendant's motion for summary judgment since the defendant failed to establish that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; Sayers v Hot, 23 AD3d 453, 454 [2005]). Since the defendant failed to satisfy his prima facie burden, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Sayers v Hot, supra; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Schmidt, J.P., Crane, Krausman, Skelos and Lunn, JJ., concur.