Stern v. DeMartino

—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Catterson, J.), dated May 29, 2001, as granted the defendant’s motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed insofar as appealed from, with costs. The defendant’s submissions, which included medical reports of the plaintiff’s physicians as well as affirmed medical reports of the defendant’s own examining physicians, established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Gaddy v Eyler, 79 NY2d 955, 956-957; Panisse v Jrs. Truck Rental, 239 AD2d 397). Therefore, the burden shifted to the plaintiff to raise a triable issue of fact that she sustained a serious injury (see Gaddy v Eyler, supra at 957). The plaintiff’s evidence failed to raise a triable issue of fact with respect to serious injury, and the defendant’s motion for summary judgment dismissing the complaint was properly granted. Ritter, J.P., Feuerstein, O’Brien, H. Miller and Townes, JJ., concur.