Ki Chang Kim v. Pokruss

290 A.D.2d 537, 736 N.Y.S.2d 633, 2002 N.Y. App. Div. LEXIS 765

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (LeVine, J.), dated September 5, 2000, 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 reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Kallicharan v Sooknanan, 282 AD2d 573; Santoro v Daniel, 276 AD2d 478). Thus, it was incumbent upon the plaintiff to come forward with admissible evidence to raise a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff failed to do so (see, Grossman v Wright, 268 AD2d 79; Smith v Askew, 264 AD2d 834; Soto v Fogg, 255 AD2d 502; Friedman v U-Haul Truck Rental, 216 AD2d 266), and accordingly, the defendants are entitled to summary judgment dismissing the complaint. S. Miller, J.P., O’Brien, McGinity, Schmidt and Townes, JJ., concur.