Garcia v. Morgan

305 A.D.2d 634, 759 N.Y.S.2d 897

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 2003
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated August 5, 2002, which denied their 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 affirmed, with costs.

The defendants established their prima facie entitlement to summary judgment by submitting, among other things, affirmations by their examining physicians 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 create an issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]). The plaintiff met his burden of demonstrating an 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]). Ritter, J.P., Feuerstein, McGinity, Townes and Cozier, JJ., concur.