Saberhagen v. Sweeney

Apr 25, 2006
Versions:28 A.D.3d 737
812 N.Y.S.2d 896

IRENE RUSSELL, Respondent, v NEW YORK CITY TRANSIT AUTHORITY et al., Appellants, and PETER LOPEZ, Respondent. [812 NYS2d 896]—In an action to recover damages for personal injuries, the defendants New York City Transit Authority and Freddie Thompson appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated January 21, 2005, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on 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, with costs.

The Supreme Court properly denied the appellants’ motion for summary judgment. The appellants failed, via their submissions, to meet their prima facie burden of showing 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]). Under these circumstances, it is not necessary to consider whether the plaintiffs papers in opposition to the appellants’ motion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]).

Schmidt, J.P., Crane, Krausman, Skelos and Lunn, JJ., concur.