Berrios v. Oddo

In two related actions to recover damages for personal injuries, the defendant in Action No. 1, Lisa Anna Oddo, appeals from an [576] order of the Supreme Court, Kings County (Mason, J.), dated April 4, 2000, which denied her motion for summary judgment dismissing the complaint in that action on the ground that the plaintiff, Ricardo Berrios, 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 in Action No. 1 is dismissed. The affirmed medical reports which the appellant submitted in support of her motion for summary judgment made out a prima facie case (see, CPLR 3212 [b]) that the plaintiff, Ricardo Berrios, did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The burden therefore shifted to Berrios to come forward with sufficient evidence that he sustained a serious injury (see, Gaddy v Eyler, 79 NY2d 955; Grossman v Wright, 268 AD2d 79). Since his submissions failed to raise a triable issue of fact (see, Hernandez v Cerda, 271 AD2d 569; Lalli v Tamasi, 266 AD2d 266), the appellant’s motion should have been granted. Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.