Murphy v. Kaplan

—In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Costello, J.), dated December 21, 2000, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law by demonstrating that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Chaplin v Taylor, 273 AD2d 188; Mariaca-Olmos v Mizrhy, 226 AD2d 437; Flanagan v Hoeg, 212 AD2d 756). Under these circumstances, it is not necessary to consider whether the plaintiffs’ papers were sufficient to raise a triable issue of fact (see, Chaplain v Taylor, supra, Mariaca-Olmos v Mizrhy, supra). In any event, we find that the plaintiffs’ papers were sufficient to raise a triable issue of fact (see, Kraemer v Henning, 237 AD2d 492; cf, Grossman v Wright, 268 AD2d 79). Bracken, P. J., Krausman, Luciano, Smith and Adams, JJ., concur.