| Catalan v G & A Processing, Inc. |
| 2010 NY Slip Op 02734 [71 AD3d 1071] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Fresia Catalan, Respondent, v G and A Processing, Inc., etal., Appellants. (And a Third-Party Action.) |
—[*1] William Pager, Brooklyn, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Battaglia, J.), dated July 14, 2009, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants failed to meet their prima facie burden of showing that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In support of their motion, the defendants reliedupon, inter alia, the report of a neurologist, Edward Weiland, who examined the plaintiff. Thereport showed significant limitations in the plaintiff's left shoulder, precluding the defendantsfrom establishing their prima facie entitlement to judgment as a matter of law (see Cuevas vCompote Cab Corp., 61 AD3d 812 [2009]; Colon v Chuen Sum Chu, 61 AD3d 805[2009]).
Since the defendants failed to meet their prima facie burden, it is unnecessary to considerwhether the papers submitted by the plaintiff in opposition to their motion for summaryjudgment were sufficient to raise a triable issue of fact (see Gaccione v Krebs, 53 AD3d524 [2008]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Mastro, J.P., Fisher,Santucci, Angiolillo and Lott, JJ., concur.