Florio v. Pape

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Berler, J.), dated December 8, 2004, as denied their 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 insofar as appealed from, with costs.

The defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Therefore, we need not consider the alleged insufficiency of the plaintiffs opposition papers (see Mendolia v Harris, 16 AD3d 561 [2005]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). H. Miller, J.E, S. Miller, Goldstein, Mastro and Lifson, JJ., concur.