Burgwin v. Langmaack

224 A.D.2d 569, 639 N.Y.S.2d 47, 1996 N.Y. App. Div. LEXIS 1383

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1996
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Underwood, J.), entered September 15, 1994, which granted the separate motions of the defendants Carmela P. Torchia and Philip Torchia and the defendant Richard J. Langmaack for summary judgment dismissing the complaint.

Ordered that the order and judgment is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the motions for summary judgment are denied, and the complaint is reinstated.

The defendants submitted proof in admissible form which established that the plaintiff had not suffered a "serious injury” within the meaning of Insurance Law § 5102 (d). The burden thus shifted to the plaintiff to demonstrate the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955).

The plaintiff met this burden by way of objective and competent medical evidence that he suffered a significant limitation of a bodily function or system within the meaning of the statute (see, Beckett v Conte, 176 AD2d 774). O’Brien, J. P., Copertino, Santucci and Krausman, JJ., concur.