JORGE v. SUTTON

Ordered that the order is affirmed, with costs.

Although in the first instance the plaintiff must establish, prima facie, the existence of a serious injury within the meaning of Insurance Law § 5102 (d), the defendant movants, in seeking the drastic remedy of summary judgment, have the burden of tendering sufficient evidence in admissible form to show that they are entitled to judgment as a matter of law (Brown v. Visan Fuel Oil Co., 114 A.D.2d 396; Merlis v. Lupo, 108 A.D.2d 902). On this record, we conclude that the defendants did not sustain their burden. In the posture of this case, accepting as true the evidence favoring the plaintiff, we find that the plaintiff's claim of a serious injury within the meaning of the Insurance Law presents a question of fact to be resolved by the jury. Brown, J.P., Niehoff, Eiber and Sullivan, JJ., concur.