Constance v. Anderson

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated January 3, 2000, which denied his 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). Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The defendant met his initial burden of establishing, based on a physician’s affirmation, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent upon the plaintiff to come forward with admissible evidence sufficient to raise an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff failed to do so, and the defendant’s motion for summary judgment should have been granted (see, Lopez v Senatore, 65 NY2d 1017, 1019; Perez v Velez, 253 AD2d 865; Stowe v Simmons, 253 AD2d 422; Medina v Zalmen Reis & Assocs., 239 AD2d 394; Marshall v Alhano, 182 AD2d 614). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.