| Herzberg v Orange & Rockland Utils., Inc. |
| 2011 NY Slip Op 04000 [84 AD3d 874] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Louis Herzberg et al., Respondents, v Orange & RocklandUtilities, Inc., Appellant. |
—[*1] Robert C. Lipsky (Powers & Santola, LLP, Albany, N.Y. [Michael J. Hutter], of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limitedby its brief, from so much of an order of the Supreme Court, Rockland County (Walsh II, J.),entered July 26, 2010, as denied its cross motion for summary judgment dismissing thecomplaint on the ground that the plaintiff Louis Herzberg did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
While we affirm the order appealed from, we do so on a ground different from that reliedupon by the Supreme Court. The Supreme Court erred in concluding that the defendant met itsprima facie burden of showing that the plaintiff Louis Herzberg (hereinafter the injured plaintiff),who allegedly sustained injuries to, inter alia, his temporomandibular joints (hereinafter TMJs) asa result of the subject accident, did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 955-956 [1992]). Thedefendant's submissions did not establish, prima facie, that the alleged injuries did not constitutea serious injury within the meaning of Insurance Law § 5102 (d) (cf. Scotti v Boutureira, 8 AD3d652 [2004]), or that the injuries were not caused by the subject accident.
Since the defendant failed to establish its prima facie entitlement to judgment as a matter oflaw, it is unnecessary to consider the sufficiency of the plaintiffs' opposition papers (seeCoscia v 938 Trading Corp., 283 AD2d 538 [2001]). Skelos, J.P., Dickerson, Hall, Austinand Miller, JJ., concur.