| N.Y. App. Div. | Feb 2, 1998
In an action to recover damages for personal injuries, etc., the defendant Vincent Nogaro appeals from an order of the Supreme Court, Nassau County (Kohn, J.), entered April 3, 1997, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
The appellant had the initial burden of establishing a prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956-957). Under the circumstances of this case, the appellant failed to make a sufficient evidentiary showing to entitle him to summary judgment. Since the appellant failed to satisfy his initial burden, the plaintiffs were not required to come forward with proof that the injured plaintiff sustained a serious injury (see, Rodriguez v Goldstein, 182 AD2d 396).