Shokrian v. Mein

Appellate Division of the Supreme Court of New York

Shokrian v. Mein

265 A.D.2d 317, 696 N.Y.S.2d 692, 1999 N.Y. App. Div. LEXIS 9662

Appellate Division of the Supreme Court of the State of New York·Decided October 4, 1999·Published·Cited by 1 cases

Opinion

—In an action to recover damages for personal [318] injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Franco, J.), entered September 9, 1998, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

The evidence submitted by the defendant demonstrated, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Uhl v Sofia, 245 AD2d 988). Thus, it was incumbent on the plaintiff to come forward with admissible evidence to create an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). Upon our review of the record, we find that the plaintiff’s medical evidence was sufficient to raise a triable issue of fact (see, Pagano v Kingsbury, 182 AD2d 268, 271). Thus, the Supreme Court improperly granted the defendant’s motion for summary judgment (see generally, Licari v Elliott, 57 NY2d 230). Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.

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—In an action to recover damages for personal [318] injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Franco, J.), entered September 9, 1998, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

The evidence submitted by the defendant demonstrated, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Uhl v Sofia, 245 AD2d 988). Thus, it was incumbent on the plaintiff to come forward with admissible evidence to create an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). Upon our review of the record, we find that the plaintiff’s medical evidence was sufficient to raise a triable issue of fact (see, Pagano v Kingsbury, 182 AD2d 268, 271). Thus, the Supreme Court improperly granted the defendant’s motion for summary judgment (see generally, Licari v Elliott, 57 NY2d 230). Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.

Shokrian v. Mein, 265 A.D.2d 317, 696 N.Y.S.2d 692, 1999 N.Y. App. Div. LEXIS 9662 (N.Y. Ct. App. 1999).

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Opinion

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