Gonzalez v. Bass

306 A.D.2d 316, 760 N.Y.S.2d 691

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 2003
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated May 29, 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 dismissing the complaint by submitting, among other things, an affirmation of their 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 with respect 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]; Kim v Cohen, 208 AD2d 807 [1994]). Florio, J.P., S. Miller, Friedmann, Adams and Rivera, JJ., concur.