Sitarski v. General Motors Corp.

126 A.D.2d 972, 511 N.Y.S.2d 805, 1987 N.Y. App. Div. LEXIS 42088

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1987
• Status: Published

Opinion

—Order unanimously reversed, on the law, without costs, and motion granted. Memorandum: Defendants, in support of their motion for summary judgment, sufficiently met their burden of presenting evidence, in admissible form, to warrant a finding as a matter of law that plaintiff has not sustained a "serious injury” within the meaning of the No-Fault Law (Insurance Law § 5102 [d]; see, Zoldas v Louise Cab Corp., 108 AD2d 378). Once defendants had produced this evidence, plaintiff had the burden of coming forward with sufficient evidentiary proof to raise a triable issue of fact. Given the medical evidence in this record, we conclude that plaintiff has failed to raise a triable issue of fact whether she suffered a "serious injury” (see, Kordana v Pomellito, 121 AD2d 783; Zoldas v Louise Cab Corp., supra; Dwyer v Tracey, 105 AD2d 476) and, therefore, Special Term erred in not determining this issue as a matter of law (see, Licari v Elliott, 57 NY2d 230, 237). (Appeal from order of Supreme Court, Erie County, Fudeman, J.—summary judgment.) Present—Callahan, J. P., Doerr, Denman, Pine and Balio, JJ.