Opinion
January 12, 1987
Appeal from the Supreme Court, Kings County (Levine, J.).
Ordered that the order is reversed, insofar as appealed from, on the law, without costs or disbursements, the defendant's motion is granted, and the complaint is dismissed.
It is incumbent upon the court to decide in the first instance whether a plaintiff has established a prima facie case of serious injury within the meaning of Insurance Law § 5102 (d) (see, Licari v. Elliott, 57 N.Y.2d 230, 237). The proof submitted by the plaintiff in connection with the defendant's summary judgment motion failed to establish a prima facie case of serious injury. Therefore, the defendant is entitled to summary judgment (see, Lorenzo v. Witt, 118 A.D.2d 628). Mangano, J.P., Brown, Rubin and Eiber, JJ., concur.