Opinion
Submitted June 7, 2000.
September 13, 2000.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (I. Aronin, J.), dated October 20, 1999, which denied his motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Jaffe Nohavicka, New York, N.Y. (Stacy R. Seldin of counsel), for appellant.
Before: GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendant submitted evidentiary proof in admissible form establishing that the plaintiff Anthony Douglas did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see, Licari v. Elliott, 57 N.Y.2d 230, 239). The burden thus shifted to the plaintiffs to demonstrate the existence of a triable issue of fact (see, Gaddy v. Eyler, 79 N.Y.2d 955).
The plaintiffs failed to meet this burden. The written statements of the injured plaintiff's treating physician submitted in opposition to the motion for summary judgment did not constitute competent evidence (see, CPLR 2106; Cwiekala v. Siddon, 267 A.D.2d 193; Moore v. Tappen, 242 A.D.2d 526; Gilphilin v. Ware, 205 A.D.2d 353). Accordingly, the plaintiffs failed to establish the existence of issues of fact which require a trial (see, Licari v. Elliott, supra; Gaddy v. Eyler, supra).