Schultz v. New York City Transit Authority

—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). 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 [550] 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 NY2d 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 AD2d 586; Goldin v Lee, 275 AD2d 341; Smith v Askew, 264 AD2d 834; cf., Scheer v Koubek, 70 NY2d 678; Lopez v Senatore, 65 NY2d 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.