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COLEMAN v. SHANGRI-LA

Appellate Division of the Supreme Court of New York, Second Department.
Mar 11, 2008
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Ordered that the order is affirmed, with costs.

The defendants failed to meet their prima facie burden of showing that the plaintiff Virginia Coleman (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law ยง 5102 (d) as a result of the subject accident ( see Toure v Avis Rent A Car Sys., 98 NY2d 345, 351; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants failed to even address the plaintiffs allegation that she suffered a left shoulder injury as a result of the subject accident ( see Monkhouse v Maven Limo, Inc., 44 AD3d 630, 630-631; O'Neal v Bronopolsky, 41 AD3d 452; Hughes v Cai, 31 AD3d 385; Loadholt v New York City Tr. Auth., 12 AD3d 352). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue of fact ( see Monkhouse v Maven Limo, Inc., 44 AD3d at 631; Coscia v 938 Trading Corp., 283 AD2d 538).