Swaby v. Maldonado

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated August 2, 2007, which denied her 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 defendant failed to make a prima facie 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 *693Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint regardless of the sufficiency of the opposition papers (see Hussain v Wang, 18 AD3d 816 [2005]). Rivera, J.P, Lifson, Miller, Garni and Eng, JJ., concur.