Opinion
2002-07696
Submitted May 7, 2003.
May 27, 2003.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated August 5, 2002, which denied their 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).
James P. Nunemaker, Jr., Uniondale, N.Y. (Kathleen E. Fioretti of counsel), for appellants.
Jeffrey Lisabeth, East Meadow, N.Y., for respondent.
Before: DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, LEO F. McGINITY, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The defendants established their prima facie entitlement to summary judgment by submitting, among other things, affirmations by their examining physicians 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; Santoro v. Daniel, 276 A.D.2d 478). Thus, it was incumbent on the plaintiff to come forward with admissible evidence to create an issue of fact (see Gaddy v. Eyler, 79 N.Y.2d 955). The plaintiff met his burden of demonstrating an issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345).
RITTER, J.P., FEUERSTEIN, McGINITY, TOWNES and COZIER, JJ., concur.