The following papers numbered 1 to 16 were read on this motion by defendants, NORMIL MASCOE and PV HOLDING CORP., for an order pursuant to CPLR 3212(b) granting defendants summary judgment on the issue of liability; and/or for an order pursuant to CPLR 3212 granting the defendants summary judgment and dismissing the plaintiff's complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §§ 5102 and 5104:

Papers Numbered

Notice of Motion-Affidavits-Exhibits.................1 - 6

Affirmation in Opposition-Memo of Law................7 - 12

Reply Affirmation...................................13 - 16

In this negligence action, plaintiff, Enid Dunlap, seeks to recover damages for personal injuries she sustained as a result [*2]of a motor vehicle accident that occurred at approximately 5:30 a.m. on August 7, 2009, between the vehicle operated by Enid Dunlap and the vehicle owned by PV Holding Corp. and operated by defendant, Normil Mascoe. Mascoe rented the vehicle from Avis Rent-A-Car although the title holder of the vehicle was PV Holding Corp. The accident took place at the intersection of Francis Lewis Boulevard and 222nd Street, Queens County, New York. Plaintiff was allegedly injured when her vehicle collided with the defendants' vehicle in the intersection. The intersection is controlled by a stop sign which was facing the direction of the plaintiff's vehicle on 222nd Street. Plaintiff contends that she stopped at the stop sign, inched forward due to an obstructed view of Francis Lewis Boulevard, then proceeded into the intersection and was struck by the defendants' vehicle which was proceeding with the right of way on Francis Lewis Boulevard. Plaintiff contends that as a result of the accident she sustained serious physical injuries.

The plaintiff commenced this action by filing a summons and complaint on July 10, 2012. Issue was joined by service of defendants' verified answer dated February 11, 2013. Following the completion of discovery, the plaintiff filed a Note of Issue on August 29, 2013. The matter is now on the calendar of the Trial Scheduling Part for March 27, 2014.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE

OF LIABILITY OF PV HOLDING CORP: GRAVES AMENDMENT

Defendant PV Holding Corp. moves for an order dismissing the complaint against it alleging that under the Federal Transportation Equity Act of 2005, 49 U.S.C. § 30106, commonly known as the "Graves Amendment," a leasing/rental company vehicle owner cannot be held to be vicariously liable for the alleged negligent acts of the renter, its employees or agents. PV Holding asserts that the Graves Amendment preempts New York Vehicle and Traffic Law § 388.

In support of its motion, PV Holding submits an affidavit dated October 1, 2013 from Vince Moffa, the Assistant Secretary of PV Holding. He states that PV Holding is a company which exists for the sole purpose of holding title to motor vehicles rented and leased by Avis Rent-A-Car System LLC. He states that at the time of the underlying occurrence, the vehicle owned by PV Holding Corp was being operated by Normil Mascoe pursuant to the terms of a rental agreement. He states that, "at no time was Mr. Normil Mascoe employed by Avis or PV Holding Corp." Further, he states that there is no evidence that there was any mechanical [*3]difficulty with the PV Holding vehicle.

Defendants' counsel contends that pursuant to the Graves Amendment, as PV Holding is a rental company, it is not vicariously liable under VTL § 388 and therefore, the complaint fails to state a cause of action.

In opposition, plaintiff states that PV Holding has not offered any evidence regarding the mechanical condition of the vehicle.

It has now been determined that the Graves Amendment under The Transportation Equity Act of 2005 (49 USC § 30106) preempts all state statutes to the extent they hold those owners in the business of renting or leasing motor vehicles vicariously liable for the negligence of drivers, except when there is negligence or criminal wrongdoing on the part of the owner.

Here, there is no dispute that PV Holding is a leasing company and therefore cannot be held vicariously liable for leasing the vehicle in question. The Court finds that PV Holding has provided sufficient evidence to demonstrate that the Graves Amendment is applicable herein in that PV Holding is an owner engaged in the trade or business of renting or leasing motor vehicles (see Bravo v Vargas, 978 NYS2d 307 [2d Dept. 2014][under the Graves Amendment, the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if the owner (I) is engaged in the trade or business of renting or leasing motor vehicles, and (ii) engaged in no negligence or criminal wrongdoing] Khan v MMCA Lease, Ltd., 100 AD3d 833 {2d Dept. 2012] Ballatore v HUB Truck Rental Corp., 83 AD3d 978 [2d Dept. 2011]). Further, defendant Mascoe testified at his deposition that he had no mechanical difficulties with the vehicle during the month prior to the accident that he operated it.

Therefore, the motion by PV Holding, to dismiss the plaintiff's complaint against it based solely on vicarious liability against said defendant is granted pursuant to CPLR 3211 (a)(7) as that claim fails to state a cause of action (see Burrell v Barreiro, 83 AD3d 984 [2d Dept. 2011] Byrne v Collins, 77 AD3d 782 [2d Dept. 2010] Gluck v Nebgen, 72 AD3d 1023 [2d Dept. 2010]).

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE

OF LIABILITY AGAINST NORMIL MASCOE [*4]

In his examination before trial, taken on June 13, 2013, Normil Mascoe, age 63, stated that on the date of the accident, August 7, 2009, he was employed as a driver for Personal Touch Car Service. He left his home in the morning to go to the car service base located on Springfield Boulevard. His personal vehicle was in the shop so he was driving a vehicle he rented. He had been driving it for a month prior to the accident and stated he had no mechanical problems with the rented vehicle. He stated that he was proceeding to his destination via Francis Lewis Boulevard. At the intersection with 222nd Street there was a stop sign facing traffic on 222nd Street but no traffic device for those vehicles proceeding on Francis Lewis. He testified that he was looking straight ahead when the plaintiff's vehicle came through the stop sign on 222nd Street and struck the front right wheel of the passenger side of his vehicle with the front of her vehicle. He did not see the plaintiff's vehicle until after the impact which took place in the middle of the intersection with 222nd Street.

Plaintiff, Enid Dunlop, age 54, testified on June 13, 2013. At the time of the accident she was employed as an independent contractor for Primerica, selling life insurance. At 5:20 a.m on August 7, 2009, she was proceeding to her home from her Aunt's house. She was proceeding on 222nd Street and intended to make a left turn onto Francis Lewis. She stated that there was a stop sign in her direction on 222nd Street. She also testified that there was a big tree right in front of the stop sign to her left and a tree on her right. She stated that she stopped her vehicle behind the white stop line. She looked both right and left for oncoming vehicles on Francis Lewis. She saw the defendants' red vehicle to her left five car lengths away. There were no vehicles coming from her right. She stated that she then inched up with half her vehicle past the white line and again looked in both directions. She stated that her vision to the right was clear and she still saw the defendants' vehicle coming from her left. She stated that at that point there were no obstructions to her view and the red vehicle was four and half car lengths away. She then moved her vehicle halfway into the intersection, stopped again and looked in both directions. She testified that as she proceeded to go through the intersection her vehicle was struck by the defendants' vehicle coming from her left. Her vehicle sustained damage in the front. She called the police to the scene and was issued a violation for running a stop sign. She stated that the ticket was ultimately dismissed. Plaintiff testified that as a result of the impact she hit her head on the windshield and her knees hit the dashboard. She left the scene in an ambulance and was transported to Franklin General Hospital in Valley Stream where she made complaints of pain to her left [*5]ankle, left knee, neck and back.

In her affidavit submitted in opposition to the motion plaintiff states that at the time of the accident she stopped for the stop sign at the intersection with Francis Lewis and was waiting to make a left turn. She states that due to the fact that her view of Francis Lewis was obstructed by trees and bushes she had to inch into the intersection in order to clearly see down Francis Lewis. As she inched into the intersection she observed the defendants' vehicle was five car lengths away. She states that she brought her vehicle to a stop and was violently struck by defendant who had been traveling at a high rate of speed.

Pursuant to VTL § 1142(a): "every driver of a vehicle approaching a stop sign shall stop as required by section eleven hundred seventy-two and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection."

Defendants' counsel contends that the accident was caused solely by the negligence of the plaintiff who had a stop sign facing her direction of traffic and who failed to yield the right of way to the defendant in violation of VTL § 1142(a). Counsel contends that the Mascoe vehicle was proceeding lawfully and properly on Francis Lewis Boulevard and had the right of way as there was no traffic control device in Mascoe's direction. Counsel asserts that Mascoe was entitled to assume that the driver of the vehicle controlled by the stop signal would yield (see McNamera v Fishkowitz, 18 AD3d 721 [2d Dept. 2005]). Counsel further contends that the evidence shows that Mascoe was already in the middle of the intersection when the vehicle operated by Enid Dunlap came from his right side and struck his vehicle on the passenger side with the front of her vehicle. Counsel also asserts that plaintiff was solely negligent for the accident as the plaintiff entered the intersection despite admittedly having observed the defendants' vehicle on Francis Lewis coming towards the intersection from four and a half car lengths away.

Counsel for defendant contends, therefore, that Mascoe is entitled to summary judgment dismissing the plaintiff's complaint because the plaintiff breached her duty to yield the right of way and proceeded into the intersection with the defendants' vehicle in full view approaching towards her. Thus, counsel contends that the plaintiff was solely responsible for causing the accident while the defendant, driving with the right of way, was free from culpable conduct. [*6]

In opposition to the motion, David Steigbigel, Esq., counsel for plaintiff, Enid Dunlap, submits that summary judgment is not appropriate as there are triable issues of fact with respect to defendant's negligence in the happening of the accident. Counsel asserts that the plaintiff testified that she stopped at the stop sign and inched into the intersection to get a clear view of oncoming traffic on Francis Lewis Boulevard. Counsel states that there is a question of fact as to Mascoe's comparative negligence as he testified that he was looking straight ahead and did not see the plaintiff's vehicle prior to the impact. Plaintiff claims that the defendant was negligent in that he failed to see that which under the facts and circumstances he should have seen by the proper use of his senses (citing PJI 2:77.1). Plaintiff asserts that the defendant failed to keep a proper lookout under the circumstances. Plaintiff contends that as the defendant was traveling straight ahead and the plaintiff's vehicle was in front of his on 222nd Street, he had the opportunity to see plaintiff's vehicle prior to the impact and avoid the accident.

Plaintiff argues that Mascoe's testimony does not establish defendant's freedom from culpable conduct. Counsel claims that even a driver with the right of way has a duty to use reasonable care to avoid a collision. Further, counsel submits that there are questions regarding defendant's comparable negligence as Mascoe testified that he did not look to the left or right as he approached the intersection, and that he did not observe the plaintiff's vehicle until the time of the actual impact. Counsel contends that there are also questions of fact as to Mascoe's speed, which vehicle entered the intersection first and whether defendant used reasonable care when he approached the intersection to avoid the accident.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

This Court finds that the deposition testimony of defendant Normil Mascoe established, prima facie, defendants' entitlement to judgment as a matter of law by demonstrating that the plaintiff, who was faced with a stop sign at the intersection of Francis Lewis Boulevard and 222nd Street, was negligent as a matter of law having driven her vehicle into the intersection without yielding the right-of-way to the defendants' vehicle and that this was the sole proximate cause of the accident (see [*7]Vehicle and Traffic Law § 1142[a] Zuleta v Quijada, 94 AD3d 876 [2d Dept. 2012] Kotzias v Panagiotis, 91 AD3d 607 [2d Dept. 2012] Duran v Simon, 83 AD3d 654 [2d Dept. 2011). It is immaterial that the plaintiff may have stopped at the stop sign before proceeding into the intersection, because she did not have the right of way when she proceeded into the intersection (see Amalfitano v Rocco, 100 AD3d 939 [2d Dept.2012] Martin v Ali, 78 AD3d 1135 [2010]).

Here, plaintiff testified that she proceeded slowly into the intersection because her view of Francis Lewis was partially obstructed. Although she actually saw the defendant's vehicle approaching the intersection from only four and a half car lengths away she proceeded into the intersection anyway without yielding the right of way to the defendant's vehicle which was in such close proximity to the intersection as to constitute an immediate hazard when she observed it. In this regard, the courts have held that where the proof establishes that a vehicle enters an intersection without a clear view of traffic and fails to yield the right-of-way to cross-traffic after stopping at a stop sign, the evidence is sufficient to establish the driver is negligent based upon a violation of Vehicle and Traffic Law § 1142(a)(see Galvis v Ravilla, 111 AD3d 600 [2d Dept. 2013][the evidence submitted by the defendant demonstrated, prima facie, that the sole proximate cause of the accident was the injured plaintiff's failure to properly observe and yield to cross traffic before proceeding into the intersection] Timm v Barilli, 109 AD3d 655 [2d Dept. 2013] Figueroa v Diaz, 107 AD3d 754 [2d Dept. 2013] Hutton v Whelan, 104 AD3d 914 [2d Dept. 2013] Williams v Hayes, 103 AD3d 713 [2d Dept. 2013] Francavilla v Doyno, 96 AD3d 714 [2d Dept. 2012] Martin v Ali, 78 AD3d 1135 [2d Dept. 2010] Cartica v Kieltyka, 55 AD3d 523 [2d Dept. 2008]).

Further, the evidence submitted in support of the motion established, prima facie, that plaintiff's conduct was the sole proximate cause of the accident. The defendant driver was entitled to anticipate that the plaintiff would obey the traffic law requiring him to yield (see Francavilla v Doyno, 96 AD3d 714 [2d Dept. 2012] Kotzias v Panagiotis, 91 AD3d at 607[2d Dept, 2012] Duran v Simon, 83 AD3d 654 [2d Dept. 2011] Martin v Ali, 78 AD3d 1135 [2d Dept. 2010]).

Having made the requisite prima facie showing of entitlement to summary judgment as a matter of law, the burden shifted to the plaintiff to raise a triable issue of fact as to whether defendant was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Goemans v [*8]County of Suffolk,57 AD3d 478 [2d Dept. 2007]). Here, this Court finds that the plaintiff failed to raise a triable issue of fact. Although defendant stated that he looked straight ahead when he went through the intersection, this action does not raise a question of fact as to whether he was comparatively negligent because the driver who has the right of way is entitled to anticipate that the driver facing the stop sign will obey the traffic law requiring him or her to yield (see Harris v Linares, 106 AD3d 873 [2d Dept. 2013] Briggs v Russo, 98 AD3d 547 [2d Dept. 2012] Barbato v Maloney, 94 AD3d 1028 [2d Dept. 2012] Rahaman v Abodeledhman, 64 AD3d 552 [2d Dept. 2009]). In addition, a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively at fault for failing to avoid the collision (see Figueroa v Diaz, 107 AD3d 754 [2d Dept. 2013] Barbato v Maloney, 94 AD3d 1028 [2d Dept. 2012]).

Lastly, the plaintiff's argument that defendant was negligent in the operation of his vehicle and was traveling at an excessive rate of speed is speculative as there was no evidence that the defendant was traveling "at a speed greater than [was] reasonable and prudent under the conditions" without "regard to the actual and potential hazards then existing" (Galvis v Ravilla, 974 NYS2d 288 [2d Dept. 2013] also see Francavilla v Doyno, 96 AD3d 714 [2d Dept. 2012] Duran v Simon, 83 AD3d 654 [2d Dept. 2011]).

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ON THE ISSUE OF THRESHOLD

Defendant also moves for an order pursuant to CPLR 3212(b), granting summary judgment dismissing the plaintiff's complaint on the ground that plaintiff did not suffer a serious injury as defined by Insurance Law § 5102.

In support of the motion, defendant submits the affirmed medical reports of Dr. Isaac Cohen and Dr. Michael Carciente.

In her verified bill of particulars, plaintiff states that as a result of the accident she sustained, inter alia, a partial tear of the anterior fibulotalar ligament of the left ankle, osteochondritis dissecans or osteochondral fracture, disc bulge at T11-12, L5-S1, and limited range of motion of the left shoulder, cervical and lumbar spines. Plaintiff contends that she sustained a serious injury as defined in Insurance Law § 5102(d) in that she sustained a permanent loss of use of a body organ, member function or system; a permanent consequential limitation or use of a body organ or member; a significant limitation of use [*9]of a body function or system; and a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Dr. Isaac Cohen, a board certified orthopedic surgeon, retained by the defendants, examined the plaintiff on August 23, 2013. She presented with pain to her knees, back and neck and stated that her ankles still swell. She had no complaints to her shoulders. She told Dr. Cohen that she had a prior accident 12 years ago with no treatment. Dr. Cohen conducted objective and comparative range of motion testing and found that plaintiff had normal range of motion of thoracolumbaosacral spine, cervical spine, left knee, and left shoulder. Dr. Cohen found a 25% limitation of range of motion of the plaintiff's left ankle. He states that plaintiff's soft tissue injuries sustained as a consequence of the subject accident resolved uneventfully with the passage of time. He states there is no evidence of functional disability present. He also states that the MRI of the left ankle showed a small area of an osteochondral defect consistent with osteochondritic dessicans a condition which he states is not posttraumatic in nature. He states that the osteochondral damage was chronic in nature and certainly preexistant to the subject accident.

The plaintiff was also examined on August 20, 2013 by defendant's retained neurologist, Dr. Michael J. Carciente. Plaintiff told Dr. Carciente that she still experiences pain in her left knee, both ankles, as well as pain to her lower back. She stated that she was involved in a prior accident with no injuries and no medical care. After his examination he found that the plaintiff, although presenting with subjective complaints had no objective neurological findings. He states that the plaintiff is presently capable of working and engaging in her normal daily living activities without restriction.

In her deposition, the plaintiff testified that at the hospital she complained of pain to her left ankle, left knee, head, neck and mid and lower back. Three weeks after the accident she sought treatment at Elmont Chiropractic for pain to her left ankle, left knee, back and left shoulder. She received physical therapy and chiropractic treatment at various facilities for five months. After that time she stopped treating because she was told by a doctor there was nothing else that could be done. She states that she still experiences swelling in her knee and ankle. As a result of the accident she was confined to her bed and her home [*10]for a month. Plaintiff testified she was involved in a prior accident nine years ago. She stated that she received treatment for her injuries in that accident and commenced a lawsuit in Queens County. She states her injuries in that accident were to her right leg, back, shoulders, knees and arms.

Defendants' counsel contends that the medical reports of Drs. Cohen and Carciente, are sufficient to establish, prima facie, that the plaintiff has not sustained a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

In opposition, plaintiff's attorney, submits his own affirmation as well as plaintiff's affidavit dated December 6, 2013; the affirmation and treatment records of Dr. Gabinskaya at J & J Medical, P.C. in Elmont, NY., an affirmation of Dr. Placido Menezes; and the affidavit of Dr. Richard Mills.

In her affidavit, plaintiff states that following the accident she came under the care of Dr. Gabinskaya who treated her with a course of physical therapy for seven months. She stopped her treatments when she was told that she had achieved maximum medical benefit.

Dr. Mills, a board certified orthopedic surgeon evaluated the plaintiff for no-fault benefits on November 24, 2009, three months following that accident. His orthopedic examination showed limitations of range of motion of the plaintiff's cervical spine, lumbar spine, left shoulder, left knee and left ankle. He states that she sustained a mild orthopedic disability. He states that there are objective clinical findings to substantiate the plaintiff's subjective complaints and to warrant continued physical therapy. He states there is a probable causal relationship between the accident and the plaintiff's injuries.

Dr. Menezes examined the plaintiff on November 7, 2013. His review of the MRI of the plaintiff's left ankle showed a .5cm osteochondral defect of the left ankle consistent with an osteochondral fracture which he finds was caused by the subject accident. In his opinion, the MRI of the lumbar spine shows disc bulge at T11 and T12 and a herniated disc at L5 and S1 caused by the subject accident. Range of motion testing showed significant [*11]restrictions of range of motion of the lumbar spine, left knee, and left ankle. He states that as a result of ther accident the plaintiff sustained cervical sprain, contusion of the left shoulder, and subchondral fracture of the left ankle. He states that the injuries to her lower back left knee and left ankle are permanent in nature and are a result of the subject accident.

Dr. Gabinskaya examined the plaintiff on September 14, 2009 three weeks following the accident. At that time the plaintiff had complaints of pain to her neck, left shoulder, left knee and left ankle. Physical examination at that time showed contusion of the left ankle, contusion of the left knee, lumbar sprain/strain, cervical radiculopathy all of which were significant and causally related to the accident of August 7, 2009.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action (Wadford v Gruz, 35 AD3d 258 [1st Dept. 2006]). "A defendant can establish that plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Grossman v Wright, 268 AD2d 79 [1st Dept. 2000]). Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230 [1982]).

Where defendants' motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992] Zuckerman v. City of New York, 49 NY2d 557[1980] Grossman v. Wright, 268 AD2d 79 [2d Dept 2000]).

This court finds that the admissible evidence submitted by the defendants fails to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. As stated above, in his affirmed medical report, Dr. Cohen stated that upon examination of the plaintiff's left ankle, the plaintiff exhibited range of motion limitations. He explained that the abnormalities of the left ankle were pre-existing and [*12]chronic in nature. However, as the independent physical indicated that the plaintiff has a limitation of range of motion of the left ankle, the defendant's independent medical report is insufficient to eliminate all triable issues of fact. Therefore, the defendants have failed to make a prima facie showing that the plaintiff does not have a physical injury as defined in the Insurance Law (see Balducci v Velasquez, 92 AD3d 626 [2d Dept. 2012] Katanov v County of Nassau, 91 AD3d 723 [2d Dept. 2012; Astudillo v MV Transp., Inc., 84 AD3d 1289 [2d Dept. 2011]). Although Dr. Cohen stated that the ankle MRI showed osteochondral damage that was claimed to be chronic in nature, the findings of Dr. Cohen as to limitations of range of motion of the plaintiff's left ankle, as well as the findings of defendant's doctors who claim the left ankle injury and loss of range of motion was caused by the accident raises an issue of fact as to whether the plaintiff suffered a significant limitation of use of left ankle in 2009 or whether it is chronic in nature and preexisted the subject accident(see Raguso v Ubriaco, 97 AD3d 560 [2d Dept. 2012] Artis v Lucas, 84 AD3d 845 [2d Dept. 2011]

Thus, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, that plaintiff had not sustained serious injuries within the meaning of Insurance Law § 5102(d), tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985] Reynolds v Wai Sang Leung, 78 AD3d 919 [2d Dept. 2010]).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Torres v Torrano, 79 AD3d 1124 [2d Dept. 2011] Coscia v 938 Trading Corp., 283 AD2d 538 [2d Dept. 2001]).

Accordingly, for the reasons set forth above, it is hereby,

ORDERED, that the defendants' motion for an order granting summary judgment dismissing the plaintiff's complaint pursuant to Insurance Law §§ 5102 and 5104 is denied, and it is further,

ORDERED, that the Clerk of Court is directed to enter judgment in favor of defendant, PV Holding Inc., dismissing the complaint as to defendant PV Holding Inc. on the issue of liability, and it is further,

ORDERED, that the motion by defendant, Normil Mascoe, for an order dismissing the plaintiff's complaint against him on the [*13]issue of liability is granted, and the Clerk of Court is authorized to enter judgment accordingly.



Dated: February 26, 2014

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.