Opinion
No. 2008-00658.
December 23, 2008.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered November 28, 2007, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff John M. Rizzo did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel), for appellant.
Joachim, Frommer, Cerrato Levine, LLP, Garden City, N.Y. (Louis J. Cerrato and Mary Ellen O'Brien of counsel), for respondents.
Before: Fisher, J.P., Covello, Balkin and Belen, JJ. concur.
Ordered that the order is affirmed, with costs.
The defendant failed to make a prima facie showing that the plaintiff John M. Rizzo did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident ( see Staubitz v Yaser, 41 AD3d 698; O'Neal v Bronopolsky, 41 AD3d 452; Hughes v Cai, 31 AD3d 385). Accordingly, the defendant's motion for summary judgment dismissing the complaint was properly denied without the need to consider the sufficiency of the plaintiff's' opposition papers.