Marc Leibowitz v Frederick D. Heiman

Leibowitz v Heiman 2006 NY Slip Op 05760 [31 AD3d 615] July 18, 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

Marc Leibowitz et al., Respondents,
v
Frederick D. Heiman et al., Appellants. (And a Related Action.)

—[*1]In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Loughlin, J.), dated June 2, 2005, as denied their motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs in that action sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, with the bill of costs to the plaintiffs.

Contrary to the appellants' contention, the Supreme Court properly denied their motion for summary judgment dismissing the complaint on the ground that they failed to establish, prima facie, that neither of the plaintiffs sustained 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]; Kaminsky v Waldner, 19 AD3d 370, 371 [2005]; Nembhard v Delatorre, 16 AD3d 390, 391 [2005]). In light of the foregoing, we need not consider the sufficiency of the papers [*2]submitted in opposition to the motion. Schmidt, J.P., Crane, Krausman, Skelos and Lunn, JJ., concur.