Alvarez v. Hayward

Appellate Division of the Supreme Court of New York

Alvarez v. Hayward

280 A.D.2d 501, 720 N.Y.S.2d 403, 2001 N.Y. App. Div. LEXIS 1763

Appellate Division of the Supreme Court of the State of New York·Decided February 13, 2001·Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Posner, J.), dated January 24, 2000, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendants submitted proof in admissible form establishing that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d). Thus, the burden shifted to the plaintiffs to demonstrate the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955). The plaintiffs failed to sustain this burden (see, Cabri v Myung-Soo Park, 260 AD2d 525; Williams v Ciaramella, 250 AD2d 763; Miller v Donohue, 250 AD2d 825). Therefore, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint. Bracken, Acting P. J., S. Miller, McGinity and Schmidt, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Posner, J.), dated January 24, 2000, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendants submitted proof in admissible form establishing that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d). Thus, the burden shifted to the plaintiffs to demonstrate the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955). The plaintiffs failed to sustain this burden (see, Cabri v Myung-Soo Park, 260 AD2d 525; Williams v Ciaramella, 250 AD2d 763; Miller v Donohue, 250 AD2d 825). Therefore, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint. Bracken, Acting P. J., S. Miller, McGinity and Schmidt, JJ., concur.

Alvarez v. Hayward, 280 A.D.2d 501, 720 N.Y.S.2d 403, 2001 N.Y. App. Div. LEXIS 1763 (N.Y. Ct. App. 2001).

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Opinion

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