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

Appellate Division of the Supreme Court of the State of New York·Decided February 13, 2001·Published

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.

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

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