The IAS court construed the default on plaintiffs' motion for summary judgment on "liability" — which only raised the issue of defendants' fault — to also resolve the question of serious injury, apparently based upon our decisions in Maldonado v. DePalo ( 277 A.D.2d 21) and Porter v. SPD Trucking ( 284 A.D.2d 181). However, before a plaintiff may proceed to damages under Insurance Law § 5102(d), both fault and serious injury must be established. To the extent our holdings in Maldonado and Porter, supra, are to the contrary, we overrule them. In the instant case, plaintiffs established fault by virtue of defendants' default on the summary judgment motion, but never raised the issue of serious injury, which is a threshold matter separate from the issue of fault (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353-354; Young v. Gould, 298 A.D.2d 287). Since the issue of serious injury was not established, we remand for further proceedings on that issue and, if established, on damages.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.