Dwyer v. Leitner

In an action to recover dam [518] ages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Barasch, J.), dated August 23, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff Brendan P. Dwyer did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed, with costs. The defendant’s medical proof established the defendant’s prima facie entitlement to judgment as a matter of law, on the ground that the plaintiff Brendan P. Dwyer did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345). The physician’s affirmation submitted by the plaintiffs in opposition to the motion was insufficient to raise a triable issue of fact (see Lentini v Melina, 287 AD2d 550; Barbeito v Kesev Taxi, 281 AD2d 379; Beckett v Conte, 176 AD2d 774; cf. Toure v Avis Rent A Car Sys., supra). Accordingly, the motion for summary judgment was properly granted. Florio, J.P., O’Brien, Friedmann, Adams and Crane, JJ., concur.