Austin v. Darmindra

306 A.D.2d 234, 759 N.Y.S.2d 898

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated September 15, 2002, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendant established his prima facie entitlement to summary judgment by submitting an affirmation of his examining physician, which indicated that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Kallicharan v Sooknanan, 282 AD2d 573 [2001]; Santoro v Daniel, 276 AD2d 478 [2000]). Thus, it was incumbent on the plaintiff to come forward with admissible evidence to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]). The plaintiff met his burden of demonstrating a triable issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Altman, J.P., Krausman, Goldstein, H. Miller and Crane, JJ., concur.