Malfitano v. Soria

Appellate Division of the Supreme Court of New York

Malfitano v. Soria

280 A.D.2d 527, 720 N.Y.S.2d 401, 2001 N.Y. App. Div. LEXIS 1554

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 13, 2001

StatusPublished

This text of 280 A.D.2d 527 (Malfitano v. Soria) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Malfitano v. Soria, 280 A.D.2d 527, 720 N.Y.S.2d 401, 2001 N.Y. App. Div. LEXIS 1554 (N.Y. Ct. App. 2001).

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Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated May 4, 2000, which denied their motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained 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 established a prima facie case that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent upon the plaintiffs to come forward with admissible evidence to raise a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiffs failed to do so. Therefore, the defendants’ motion for summary judgment dismissing the complaint should have been granted (see, Smith v Askew, 264 AD2d 834; Kau[528]*528derer v Penta, 261 AD2d 365; Perez v Velez, 253 AD2d 865; Marshall v Albano, 182 AD2d 614; Pagano v Kingsbury, 182 AD2d 268). Santucci, J. P., Altman, Luciano and H. Miller, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated May 4, 2000, which denied their motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained 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 established a prima facie case that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent upon the plaintiffs to come forward with admissible evidence to raise a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiffs failed to do so. Therefore, the defendants’ motion for summary judgment dismissing the complaint should have been granted (see, Smith v Askew, 264 AD2d 834; Kau[528]*528derer v Penta, 261 AD2d 365; Perez v Velez, 253 AD2d 865; Marshall v Albano, 182 AD2d 614; Pagano v Kingsbury, 182 AD2d 268). Santucci, J. P., Altman, Luciano and H. Miller, JJ., concur.

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Bluebook (online)

280 A.D.2d 527, 720 N.Y.S.2d 401, 2001 N.Y. App. Div. LEXIS 1554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malfitano-v-soria-nyappdiv-2001.

Opinion

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