Opinion
2002-07551, 2002-10521
Submitted May 7, 2003.
November 10, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Nassau County (Phelan, J.), dated July 18, 2002, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Pauline Mullings did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and (2), as limited by their brief, from so much of an order of the same court dated October 17, 2002, as, upon renewal and reargument, adhered to its original determination.
Andrew Rosner, Garden City, N.Y., for appellants.
Lewis, Johs, Avallone, Aviles Kaufman, LLP, Melville, N.Y. (LaurieAnn Walker of counsel), for respondents.
Before: DAVID S. RITTER, J.P., LEO F. McGINITY, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the appeal from the order dated July 18, 2002, is dismissed, as that order was superseded by the order dated October 17, 2002, made upon renewal and reargument; and it is further,
ORDERED that the order dated October 17, 2002, is reversed insofar as appealed from, upon renewal and reargument, the motion for summary judgment is denied, and the order dated July 18, 2002, is vacated; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The defendants' motion for summary judgment should be denied. The medical proof submitted by the defendants in support of their motion was insufficient to demonstrate prima facie that the plaintiff's injuries were not causally related to the accident, or that they were not serious within the meaning of Insurance Law § 5102(d) ( see Shin v. Torres, 295 A.D.2d 495; Franca v. Parisi, 298 A.D.2d 554; Junco v. Ranzi, 288 A.D.2d 440; Papadonikolakis v. First Fid. Leasing Group, 283 A.D.2d 470). Accordingly, the defendants failed to establish a prima facie case for judgment as a matter of law. Under these circumstances, we need not consider whether the plaintiff's papers were sufficient to raise a triable issue of fact ( see Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437).
RITTER, J.P., McGINITY, TOWNES and COZIER, JJ., concur.