Hussain v. Wang

May 31, 2005
Versions:18 A.D.3d 816
795 N.Y.S.2d 461

In an action to recover damages for personal injuries, the defendants James DeStefano and Paul DeStefano appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated April 12, 2004, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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 insofar as appealed from, without costs or disbursements.

The defendants James DeStefano and Paul DeStefano (hereinafter the defendants) failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them, regardless of the sufficiency of the opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

H. MILLER, J.P., S. MILLER, GOLDSTEIN, MASTRO and LIFSON, JJ., concur.