Hilaire v Trotta, 2016 NY Slip Op 04696 [140 AD3d 930]

June 15, 2016

Appellate Division, Second Department

[*1]

Elsie Hilaire, Respondent,

v

Donna Trotta, Appellant. (And a Third-Party Action.)

DeSena & Sweeney, LLP, Bohemia, NY (Shawn P. O’Shaughnessy of counsel), for appellant.

Cartier, Bernstein, Auerbach & Dazzo, P.C., Patchogue, NY (Linda Marie Boswell of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Rouse, J.), dated February 5, 2015, as denied that branch of her motion which was 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) as a result of the subject accident.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant failed to meet her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident ( see Toure v Avis Rent A Car Sys. , 98 NY2d 345 [2002]; Gaddy v Eyler , 79 NY2d 955, 956-957 [1992]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff’s opposition papers ( see Pleasant v M & Lenny Taxi Corp. , 94 AD3d 1072 , 1073 [2012]; Bangar v Man Sing Wong , 89 AD3d 1048 , 1049 [2011]). Dillon, J.P., Sgroi, Miller and Barros, JJ., concur..