Rodriguez v. Martinez

306 A.D.2d 395, 760 N.Y.S.2d 885

• 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 defendants appeal from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered June 14, 2002, as denied that branch of their motion which was to dismiss the complaint insofar as asserted by the plaintiffs Carlos Rodriguez and Ana Rodriguez on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, with costs, that branch of the motion which was to dismiss the complaint insofar as asserted by the plaintiffs Carlos Rodriguez and Ana Rodriguez on the ground that neither of them sustained a serious injury within the meaning of Insurance Law § 5102 (d) is granted, and the complaint is dismissed insofar as asserted by the plaintiffs Carlos Rodriguez and Ana Rodriguez.

The defendants established their prima facie entitlement to summary judgment as a matter of law, by submitting, among other things, affirmations of their examining physicians indicating that neither of the respondents, the plaintiffs Carlos Rodriguez and Ana Rodriguez, sustained 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 respondents to come forward with admissible evidence to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]). The respondents failed to meet this burden (see Philippe v Ivory, 297 AD2d 666 [2002]; Goldin v Lee, 275 AD2d 341 [2000]; Soto v Fogg, 255 AD2d 502 [1998]; see also Ginty v MacNamara, 300 AD2d 624 [2002]). Altman, J.P., Krausman, Goldstein, H. Miller and Crane, JJ., concur.