Penzone v. Aldenton

306 A.D.2d 392, 760 N.Y.S.2d 890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 2003
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Covello, J.), entered August 20, 2002, as, upon granting the defendants’ motion for leave to reargue a prior order of the same court dated May 22, 2002, vacated that order and granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, upon reargument, the original determination is adhered to, and the order dated May 22, 2002, is reinstated.

The defendants established their prima facie entitlement to summary judgment by submitting affirmations of their examining physicians indicating that the injured 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 plaintiffs to come forward with admissible evidence to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]). Independent of the unsworn magnetic resonance imaging report, the plaintiffs met their burden of raising a triable issue of fact as to whether the injured plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Altman, J.P., Krausman, Goldstein, H. Miller and Crane, JJ., concur.