Kimnga Thi Vo Hatch v. Chimera

305 A.D.2d 372, 757 N.Y.S.2d 899

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Dunn, J.), dated August 12, 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, the affirmations of 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 raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]). The plaintiff met her burden of demonstrating the existence of a triable issue of fact as to whether she suffered 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.