Salina v. Joseph

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated March 24, 2005, which denied their motion for summary judgment dismissing the complaint 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, with costs.

The Supreme Court correctly determined that the defendants did not establish their prima facie burden on their motion (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; Aronov v Leybovich, 3 AD3d 511, 512 [2004]). Consequently, the burden never shifted to the plaintiff to raise a triable issue of fact, and we need not consider the sufficiency of the plaintiffs opposition to the motion (see Hanna v Alverado, 16 AD3d 624 [2005]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). H. Miller, J.P., Crane, Krausman, Rivera and Lifson, JJ., concur.