Constance v. Anderson

Appellate Division of the Supreme Court of New York

Constance v. Anderson

279 A.D.2d 600, 719 N.Y.S.2d 869, 2001 N.Y. App. Div. LEXIS 840

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 29, 2001

StatusPublished

This text of 279 A.D.2d 600 (Constance v. Anderson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Constance v. Anderson, 279 A.D.2d 600, 719 N.Y.S.2d 869, 2001 N.Y. App. Div. LEXIS 840 (N.Y. Ct. App. 2001).

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Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated January 3, 2000, which denied his 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 granted, and the complaint is dismissed.

The defendant met his initial burden of establishing, based on a physician’s affirmation, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent upon the plaintiff to come forward with admissible evidence sufficient to raise an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff failed to do so, and the defendant’s motion for summary judgment should have been granted (see, Lopez v Senatore, 65 NY2d 1017, 1019; Perez v Velez, 253 AD2d 865; Stowe v Simmons, 253 AD2d 422; Medina v Zalmen Reis & Assocs., 239 AD2d 394; Marshall v Alhano, 182 AD2d 614). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated January 3, 2000, which denied his 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 granted, and the complaint is dismissed.

The defendant met his initial burden of establishing, based on a physician’s affirmation, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent upon the plaintiff to come forward with admissible evidence sufficient to raise an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff failed to do so, and the defendant’s motion for summary judgment should have been granted (see, Lopez v Senatore, 65 NY2d 1017, 1019; Perez v Velez, 253 AD2d 865; Stowe v Simmons, 253 AD2d 422; Medina v Zalmen Reis & Assocs., 239 AD2d 394; Marshall v Alhano, 182 AD2d 614). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.

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Bluebook (online)

279 A.D.2d 600, 719 N.Y.S.2d 869, 2001 N.Y. App. Div. LEXIS 840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/constance-v-anderson-nyappdiv-2001.

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