Opinion
2001-04054
Submitted January 9, 2002.
January 28, 2002.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Durante, J.), dated March 30, 2001, which denied its 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).
Wallace D. Gossett, Brooklyn, N.Y. (Steven Efron of counsel), for appellant.
Cooper, Bamundo, Hecht Longworth, LLP, Brooklyn, N.Y. (Denis G. Kelly of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendant established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), thereby shifting the burden to the plaintiff to submit sufficient evidence to raise a triable issue of fact on that issue (see, Gaddy v. Eyler, 79 N.Y.2d 955). The evidence submitted by the plaintiff in opposition to the motion was insufficient to raise a triable issue of fact (see, Massey v. She Shang Jung, 280 A.D.2d 586; Goldin v. Lee, 275 A.D.2d 341; Smith v. Askew, 264 A.D.2d 834; cf., Scheer v. Koubek, 70 N.Y.2d 678; Lopez v. Senatore, 65 N.Y.2d 1017). Accordingly, the defendant's motion for summary judgment dismissing the complaint should have been granted.
SANTUCCI, J.P., GOLDSTEIN, LUCIANO, SCHMIDT and CRANE, JJ., concur.