Marciniak v. Gerbino

227 A.D.2d 531, 642 N.Y.S.2d 709, 1996 N.Y. App. Div. LEXIS 5367

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1996
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants Maria Papandrea Gerbino and Toni Ann DiMauita appeal from an order of the Supreme Court, Kings County (Garry, J.), dated February 1, 1995, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed, on the law, with costs, the appellants’ motion for summary judgment is granted, and, upon searching the record, summary judgment is granted to the defendants Marian Realmuto and H.A. Gunzenberger, and the complaint is dismissed in its entirety.

The defendants Maria Papandrea Gerbino and Toni Ann DiMauita submitted proof which established that the infant plaintiff had not suffered a "serious injury” within the meaning of Insurance Law § 5102 (d). The burden thus shifted to the plaintiffs to demonstrate the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955).

The plaintiffs failed to meet this burden. The plaintiffs simply submitted excerpts from the deposition testimony of the infant plaintiff and their bill of particulars. Although these documents contained subjective complaints of pain, the plaintiffs have failed to offer any objective medical evidence to support these claims (see, Stossel v Fleyshmahker, 117 Misc 2d 454, 455-456). Accordingly, the defendants’ motion for summary judgment should have been granted. Although the defendants Marian Realmuto and H.A. Gunzenberger did not move for summary judgment, in light of our determination that the plaintiffs have failed to establish a triable issue of fact that the infant plaintiff suffered a serious injury, these defendants are also entitled to summary judgment (see, CPLR 3212 [b]). Bracken, J. P., Miller, Joy, Hart and Krausman, JJ., concur.