Once defendant has proffered competent evidence that meets the sufficiency standard, the burden is shifted to the plaintiff to rebut the presumption that there is no issue of fact as to the threshold question. (See, Gaddy v Eyler, 79 NY2d 955, 956-957; Licari v Elliott, 57 NY2d 230, 238, supra; Grossman v Wright, 268 AD2d 79; Echeverri v Happe, 256 AD2d 304.) Logic thus dictates that in the absence of defendants' failure to proffer competent evidence with regard to the threshold question, summary judgment must be denied, regardless of whether plaintiffs' proffered evidence is clearly deficient, or nonexistent.
Once defendant has proffered competent evidence that meets the sufficiency standard, the burden is shifted to the plaintiff to rebut the presumption that there is no issue of fact as to the threshold question.See, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957; Licari v. Elliott, 57 N.Y.2d 230, 238; Grossman v. Wright, 268 A.D. 79, 2000 WL 563150 at p. 3; Echeverri v. Happe, 256 A.D.2d 304. Logic thus dictates that in the absence of defendants' failure to proffer competent evidence with regard to the threshold question, summary judgment must be denied, regardless of whether plaintiffs proffered evidence is clearly deficient, or non-existent.
Pommells v Perez, 4 N.Y.3d 566, 574; Gaddy v. Eyler, 79 N.Y.2d 955 (1992); Noble v Ackerman, 252 A.D.2d 392 (2nd Dept. 1999). See, Baez v. Rahamatali, 6 N.Y.3d 868 (2006); Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345 (2002);Echeverri v. Happe, 256 A.D.2d 304 (2nd Dept. 1998); Licari v. Elliott, 57 N.Y.2d 230 (1982). Plaintiff, in opposition to defendants' cross motions, submitted, in relevant part, the affirmations of Dr. Ben Benatar, her treating orthopedist, dated April 3, 2007; Dr. Elizabeth P. Maltin, a radiologist, dated August 16, 2006, and the affirmed narrative report of Dr. Jill A. Bressler, also a treating neurologist, dated June 24, 2006; and plaintiff's affidavit of merit, dated March 22, 2007.
Once the defendant submits evidence establishing that the plaintiff did not sustain a serious injury within the meaning of section 5102(d) of the Insurance Law, the burden shifts to plaintiff to produce evidentiary proof in admissible form demonstrating the existence of a triable issue of fact. See, Echeverri v. Happe, 256 AD2d 304 (1998); Gaddy v. Eyler, 79 NY2d 955, 956-957 (1992); Licari v. Elliott, supra, 57 NY2d at p. 235 (1982). In opposition to the motion, plaintiff Arboleda submitted, inter alia, the medical reports of Dr. Aric Hausknecht, a neurologist, and Dr. Jerry Lubliner, an orthopedist.