Fortini v. Plotkin

Appellate Division of the Supreme Court of New York

Fortini v. Plotkin

254 A.D.2d 453, 679 N.Y.S.2d 153, 1998 N.Y. App. Div. LEXIS 11283

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

DecidedOctober 26, 1998

StatusPublished

This text of 254 A.D.2d 453 (Fortini v. Plotkin) 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

Fortini v. Plotkin, 254 A.D.2d 453, 679 N.Y.S.2d 153, 1998 N.Y. App. Div. LEXIS 11283 (N.Y. Ct. App. 1998).

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Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Cusick, J.), dated October 17, 1997, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

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

[454]*454Once the defendants submitted evidence demonstrating that the plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d), the burden shifted to the plaintiffs to produce evidentiary proof in admissible form demonstrating the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955). The plaintiffs met their burden through the submission of an affidavit by the injured plaintiff which raised an issue of fact as to whether the injury she sustained, which was confirmed by objective medical testing, prevented her from “performing substantially all of the material acts which constitute such person’s 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” (Insurance Law § 5102 [d]). Miller, J. P., Thompson, Pizzuto, McGinity and Luciano, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Cusick, J.), dated October 17, 1997, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

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

[454]*454Once the defendants submitted evidence demonstrating that the plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d), the burden shifted to the plaintiffs to produce evidentiary proof in admissible form demonstrating the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955). The plaintiffs met their burden through the submission of an affidavit by the injured plaintiff which raised an issue of fact as to whether the injury she sustained, which was confirmed by objective medical testing, prevented her from “performing substantially all of the material acts which constitute such person’s 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” (Insurance Law § 5102 [d]). Miller, J. P., Thompson, Pizzuto, McGinity and Luciano, JJ., concur.

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Bluebook (online)

254 A.D.2d 453, 679 N.Y.S.2d 153, 1998 N.Y. App. Div. LEXIS 11283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortini-v-plotkin-nyappdiv-1998.

Opinion

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