Defendant moves, pursuant to CPLR § 3212, for an order granting summary judgment due to plaintiff’s failure to meet the threshold limits set by New York State Insurance Law §§ 5102 and 5104. Plaintiff opposes defendant’s motion. A Lawyer said that, the action arises from a motor vehicle accident involving a collision between a motor vehicle operated by plaintiff and a motor vehicle owned and operated by defendant. The accident occurred at approximately 4:00 p.m. on August 21, 2007, on West Merrick Road at its intersection with Rockaway Avenue, Valley Stream, Long Island. On or about May 21, 2008, plaintiff commenced this action by service of a Summons and Verified Complaint. Issue was joined on June 19, 2008.
The issue in this case is whether The Bronx defendant is entitled to his motion for summary judgment on the ground that plaintiff did not sustained serious injury as defined under the Insurance law.
The Court held that, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant’s favor. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney’s affirmation. If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist.