Gordon Joris, et al., respondents, v. UMF (2011)

Submitted-March 9, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants UMF Car & Limo Service and Valeri Gorelov appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (F.Rivera, J.), dated August 20, 2010, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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 affirmed insofar as appealed from, with costs.

The appellants failed 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 N.Y.2d 345;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957).

Since the appellants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Linton v. Nawaz, 14 NY3d 821, 822;  Bright v. Moussa, 72 AD3d 859, 860;  Menezes v. Khan, 67 AD3d 654, 654-655).

MASTRO, J.P., ANGIOLILLO, BALKIN, LOTT and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court