Seminara v. Grossman

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Putnam County (Hickman, J.), dated August 26, 1997, which granted the plaintiff’s motion for leave to reargue the defendants’ prior motion for summary judgment dismissing the complaint on the ground that the plaintiff did 421 not sustain a serious injury within the meaning of Insurance Law § 5102 (d), that had been granted by order of the same court, dated February 19, 1997, and, upon reargument, denied their motion for summary judgment dismissing the complaint. Ordered that the order is modified, on the law, by deleting the provision thereof which, upon reargument, denied the defendants’ motion for summary judgment and substituting therefor a provision which, upon reargument, adheres to the original determination; as so modified the order is affirmed, with costs to the appellants. The defendants submitted proof in admissible form which established that the plaintiff had not suffered a serious injury within the meaning of Insurance Law § 5102 (d). The burden thus shifted to the plaintiff to demonstrate the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955). Upon our review of the record, we find that the plaintiff failed to meet this burden (see, McHaffie v Antieri, 190 AD2d 780; Beckett v Conte, 176 AD2d 774; Philpotts v Petrovic, 160 AD2d 856). Thus, the defendants were entitled to summary judgment dismissing the complaint. Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur.