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Rizzo v. Torchiano

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 23, 2008

JOHN M. RIZZO, ET AL., RESPONDENTS,
v.
VITO A. TORCHIANO, APPELLANT.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered November 28, 2007, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff John M. Rizzo 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.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, RUTH C. BALKIN & ARIEL E. BELEN, JJ.

(Index No. 15468/05)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The defendant failed to make a prima facie showing that the plaintiff John M. Rizzo did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Staubitz v Yaser, 41 AD3d 698; O'Neal v Bronopolsky, 41 AD3d 452; Hughes v Bo Cai, 31 AD3d 385). Accordingly, the defendant's motion for summary judgment dismissing the complaint was properly denied without the need to consider the sufficiency of the plaintiffs' opposition papers.

FISHER, J.P., COVELLO, BALKIN and BELEN, JJ., concur.

20081223

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