Poverud v. Kwartler , 934 N.Y.2d 351 ( 2011 )

The evidence submitted by the defendant in support of her cross motion failed to eliminate all triable issues of fact as to whether the plaintiff Jeremy K. Poverud sustained a “fracture” to his right patella as a result of the subject motor vehicle accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Olic v Pappas, 47 AD3d 780, 780 [2008]; see generally Insurance Law § 5102 [d]). Since the defendant failed to meet her prima facie burden, it is unnecessary to determine whether the plaintiffs, in opposition to the defendant’s cross motion, raised a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Accordingly, the Supreme Court properly denied the defendant’s cross motion for summary judgment dismissing the complaint.

In light of our determination, we need not reach the parties’ remaining contentions. Dillon, J.R, Angiolillo, Florio and Dickerson, JJ., concur.