Simonetti v. Tindel Waterproofing & Restoration Inc.

261 A.D.2d 531, 690 N.Y.S.2d 654, 1999 N.Y. App. Div. LEXIS 5420

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Berke, J.), entered June 5,1998, which granted the defendants’ 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 affirmed, with costs.

In support of their motion for summary judgment, the defendants submitted proof in admissible form which established that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The burden then shifted to the plaintiff to demonstrate the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955). We agree with the Supreme Court that the plaintiff failed to meet this burden (see, Tabacco v Kasten, 229 AD2d 526; Atamian v Mintz, 216 AD2d 430; Friedman v U-Haul Truck Rental, 216 AD2d 266). Thus, the defendants were properly granted summary judgment (see, Licari v Elliott, 57 NY2d 230). Mangano, P. J., Santucci, Krausman, Florio and H. Miller, JJ., concur.