Opinion
2002-09793
Submitted March 5, 2003.
March 17, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Orange County (McGuirk, J.), dated September 30, 2002, as 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.
Larkin, Axelrod, Trachte Tetenbaum, LLP, Newburgh, N.Y. (Adam Garth of counsel), for appellant.
Boeggeman, George, Hodges Corde, P.C., White Plains, N.Y. (Cynthia Dolan of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant established his prima facie entitlement to summary judgment by submitting, among other things, an affirmation of his examining physician, which indicated that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Kallicharan v. Sooknanan, 282 A.D.2d 573, 574; Santoro v. Daniel, 276 A.D.2d 478). Thus, it was incumbent on the plaintiff to come forward with admissible evidence to raise a triable issue of fact (see Gaddy v. Eyler, 79 N.Y.2d 955). We agree with the Supreme Court that the plaintiff failed to do so (see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; see also Evans v. Beebe, 267 A.D.2d 828, 829; Delaney v. Lewis, 256 A.D.2d 895, 897). Thus, the Supreme Court properly granted the defendant's motion for summary judgment.
SANTUCCI, J.P., KRAUSMAN, McGINITY, SCHMIDT and CRANE, JJ., concur.