| Straussberg v Marghub |
| 2013 NY Slip Op 05442 [108 AD3d 694] |
| July 24, 2013 |
| Appellate Division, Second Department |
| Benno Straussberg, Respondent, v Amir Marghubet al., Appellants. |
—[*1] Elana Sharara, Great Neck, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Queens County (Butler, J.), dated December 17, 2012,which denied their motion for summary judgment dismissing the complaint on theground that the plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident.
Ordered that the order is affirmed, with costs.
The defendants failed to meet their prima facie burden of showing that the plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d) asa result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Although the defendantscontended that the alleged injury to the thoracolumbar region of the plaintiff's spine didnot constitute a serious injury within the meaning of Insurance Law § 5102 (d),they failed to provide competent medical evidence establishing, prima facie, that thealleged injury did not constitute a serious injury under either the permanent consequentiallimitation of use or significant limitation of use categories of Insurance Law §5102 (d) (see Snyder vRivera, 98 AD3d 1104, 1105 [2012]; Kelly v Ghee, 87 AD3d 1054, 1055 [2011]). Moreover,despite maintaining that the alleged injury was not caused by the subject accident, thedefendants' own evidentiary submissions demonstrated the existence of a triable issue offact as to whether that alleged injury was caused by the subject accident (see Snyder vRivera, 98 AD3d at 1105; Kelly v Ghee, 87 AD3d at 1055).
In light of the defendants' failure to meet their prima facie burden, it is unnecessaryto consider the sufficiency of the plaintiff's opposing papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Therefore, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint. Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ.,concur.