Opinion

Brown v. Visan Fuel Oil Co.

  • 114 A.D.2d 396
  • 494 N.Y.S.2d 39
  • 1985 N.Y. App. Div. LEXIS 53075
Court
Appellate Division of the Supreme Court of the State of New York
Filed
Oct 15, 1985
Status
Published
Cited by
3 cases
Authority
More cited than 77.7%

The opinion

—In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Kings County (Scholnick, J.), dated December 19, 1984, which denied their motion for summary judgment dismissing the complaint for failure to meet the threshold requirement of establishing "[sjerious injury” as defined in Insurance Law § 5102 (d).

Order affirmed, with costs.

"Summary judgment is an appropriate vehicle for determining whether a plaintiff can establish, prima facie, a serious injury” within the meaning of Insurance Law § 5102 (d) (formerly Insurance Law § 671 [4]) (Zoldas v Louise Cab Corp., 108 AD2d 378, 381 ). Nevertheless, a defendant movant has the burden of showing "entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ; see, Friends of Animals v *397 Associated Fur Mfrs., 46 NY2d 1065, 1067 ). In the instant case, the defendants have failed to meet their burden. Accordingly, the denial of their motion for summary judgment was proper.

Under these circumstances, we need not reach the issue of the sufficiency of the plaintiffs’ opposing papers (see, Winegrad v New York Univ. Med. Center, supra). Brown, J. P., Rubin, Lawrence and Hooper, JJ., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.