Joseph v. Cherry

Appellate Division of the Supreme Court of New York

Joseph v. Cherry

269 A.D.2d 498, 704 N.Y.S.2d 488, 2000 N.Y. App. Div. LEXIS 1982

Appellate Division of the Supreme Court of the State of New York·Decided February 22, 2000·Published·Cited by 2 cases

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated April 14, 1999, which granted the defendant’s 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 defendant met her initial burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). It was then incumbent upon [499] the plaintiff to come forward with admissible evidence sufficient to create an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff failed to do so (see, Dalessandro v Amboy Bus Co., 262 AD2d 442; Burnett v Miller, 255 AD2d 541; Ryan v Xuda, 243 AD2d 457; Lincoln v Johnson, 225 AD2d 593; Traugott v Konig, 184 AD2d 765). Bracken, J. P., Joy, Thompson, Goldstein and Feuerstein, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated April 14, 1999, which granted the defendant’s 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 defendant met her initial burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). It was then incumbent upon [499] the plaintiff to come forward with admissible evidence sufficient to create an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff failed to do so (see, Dalessandro v Amboy Bus Co., 262 AD2d 442; Burnett v Miller, 255 AD2d 541; Ryan v Xuda, 243 AD2d 457; Lincoln v Johnson, 225 AD2d 593; Traugott v Konig, 184 AD2d 765). Bracken, J. P., Joy, Thompson, Goldstein and Feuerstein, JJ., concur.

Joseph v. Cherry, 269 A.D.2d 498, 704 N.Y.S.2d 488, 2000 N.Y. App. Div. LEXIS 1982 (N.Y. Ct. App. 2000).

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