SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
December 2, 2008
ELEANA ROSE, PLAINTIFF-RESPONDENT,
CITY OF NEW ROCHELLE, DEFENDANT-RESPONDENT, JOE G. METZGER, ET AL., APPELLANTS.
In an action to recover damages for personal injuries, the defendants Joe G. Metzger and Florence Metzger appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 3, 2007, as denied their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
FRED T. SANTUCCI, J.P., JOSEPH COVELLO, JOHN M. LEVENTHAL and ARIEL E. BELEN, JJ.
(Index No. 10078/05)
DECISION & ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The appellants' proof failed to eliminate all issues of fact as to whether, as a result of the subject motor vehicle accident, the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d), and thus failed to make a prima facie showing that the appellants were entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Under these circumstances, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Tchjevskaia v Chase, 15 AD3d 389).
SANTUCCI, J.P., COVELLO, LEVENTHAL and BELEN, JJ., concur.
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