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Supreme Court, Appellate Division, Second Department, New York.

Maureen MANNS, appellant, v. James N. VAZ, respondent.

Decided: May 31, 2005

HOWARD MILLER, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, WILLIAM F. MASTRO, and ROBERT A. LIFSON, JJ. Mark S. Grossjung, Wappingers Falls, N.Y., for appellant. Goldberg Segalla, LLP, Albany, N.Y. (Theresa J. Puleo of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated March 15, 2004, as granted the defendant's cross motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the complaint is reinstated.

 When a defendant fails to establish a prima facie case, it is unnecessary to consider whether the plaintiff's papers in opposition to the defendant's motion were sufficient to raise a triable issue of fact (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).   In this case, the defendant's expert performed an orthopedic examination of the plaintiff.   However, the expert expressly refused to conduct an examination of the plaintiff's claimed temporal mandibular joint dysfunction and ear, nose, and throat injuries.   The defendant did not offer any other expert evidence with respect to those injuries.   Since the defendant failed to establish a prima facie case, his cross motion for summary judgment should have been denied.

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