Opinion
Submitted September 20, 2000.
October 16, 2000.
In two related actions to recover damages for personal injuries, the defendant in Action No. 1, Lisa Anna Oddo, appeals from an order of the Supreme Court, Kings County (Mason, J.), dated April 4, 2000, which denied her motion for summary judgment dismissing the complaint in that action on the ground that the plaintiff, Ricardo Berrios, did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Smith Mazure Director Wilkins Young Yagerman Tarallo, P.C., New York, N.Y. (Joseph A. Schwarzenberg of counsel), for appellant.
Before: DAVID S. RITTER, J.P., WILLIAM C. THOMPSON, WILLIAM D. FRIEDMANN, HOWARD MILLER, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint in Action No. 1 is dismissed.
The affirmed medical reports which the appellant submitted in support of her motion for summary judgment made out a prima facie case (see, CPLR 3212[b]) that the plaintiff, Ricardo Berrios, did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The burden therefore shifted to Berrios to come forward with sufficient evidence that he sustained a serious injury (see, Gaddy v. Eyler, 79 N.Y.2d 955; Grossman v. Wright, 268 A.D.2d 79). Since his submissions failed to raise a triable issue of fact (see, Hernandez v. Cerda, 271 A.D.2d 569; Lalli v. Tamasi, 266 A.D.2d 266), the appellant's motion should have been granted.