Opinion
2002-05941
Submitted May 14, 2003.
June 16, 2003.
In related actions to recover damages for personal injuries, Barry Hen and Abraham Hen, defendants in Action No. 2, appeal from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated May 31, 2002, as denied that branch of their motion which was for summary judgment dismissing the complaint in Action No. 2 on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the plaintiff in Action No. 1 separately appeals from stated portions of the same order.
Longo D'Apice, Brooklyn, N.Y. (Mark A. Longo and Deborah Kramer of counsel), for appellants in Action No. 2.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the appeal by the plaintiff in Action No. 1 is dismissed as abandoned, without costs or disbursements (see 22 NYCRR 670.8[c], [e]); and it is further,
ORDERED that the order is affirmed insofar as appealed from by Barry Hen and Abraham Hen, defendants in Action No. 2, without costs or disbursements.
The appellants in Action No. 2 established their prima facie entitlement to summary judgment by submitting an affirmation of their examining physician, which indicated that the plaintiff in Action No. 2, Joshua Weiss, 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 Weiss to come forward with admissible evidence to raise a triable issue of fact (see Gaddy v. Eyler, 79 N.Y.2d 955). Weiss met his burden of demonstrating a triable 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).
SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.