15 A.D.3d 362
N.Y. App. Div.
2005

Danny McBride, Appellant, v Jeffrey DeMartine et al., Respondents.

Supreme Court, Appellate Division, Second Department, New York

November 15, 2004

788 N.Y.S.2d 867

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Fagones, J.), dated October 28, 2003, which granted the defendants’ 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 reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

In support of their motion for summary judgment, 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) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; McPhaul-Morgan v E.L. Corp., 12 AD3d 353 [2004]). Thus, the motion should have been denied regardless of the sufficiency of the plaintiff‘s opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; McPhaul-Morgan v E.L. Corp., supra).

H. MILLER, J.P., SCHMIDT, RITTER, CRANE and SKELOS, JJ., concur.