Opinion
2002-04225
Submitted May 7, 2003.
May 27, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated April 24, 2002, as granted the defendants' cross 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).
Tantleff, Cohen Tantleff, P.C., Brooklyn, N.Y. (Edward D. Tantleff and Breakstone Law Firm, P.C. [Jay L. T. Breakstone] of counsel), for appellants.
Robert P. Tusa, Garden City, N.Y. (David Holmes of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the complaint is reinstated.
The defendants established prima facie entitlement to summary judgment by submitting, among other things, affirmations by their examining physicians which indicated that the injured 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 plaintiffs to come forward with admissible evidence to raise a triable issue of fact in opposition thereto (see Gaddy v. Eyler, 79 N.Y.2d 955). The plaintiffs met their burden of demonstrating the existence of a triable issue of fact as to whether the injured plaintiff 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).
SANTUCCI, J.P., SMITH, LUCIANO and MASTRO, JJ., concur.