Douglas v. Zhi Wei He

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kangs County (I. Aronin, J.), dated October 691 20, 1999, which denied his 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). Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The defendant submitted evidentiary proof in admissible form establishing that the plaintiff Anthony Douglas did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Licari v Elliott, 57 NY2d 230, 239). The burden thus shifted to the plaintiffs to demonstrate the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955). The plaintiffs failed to meet this burden. The written statements of the injured plaintiffs treating physician submitted in opposition to the motion for summary judgment did not constitute competent evidence (see, CPLR 2106; Cwiekala v Siddon, 267 AD2d 193; Moore v Tappen, 242 AD2d 526; Gilphilin v Ware, 205 AD2d 353). Accordingly, the plaintiffs failed to establish the existence of issues of fact which require a trial (see, Licari v Elliott, supra; Gaddy v Eyler, supra). Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.