Brush v. Levy

—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, Orange County (McGuirk, J.), dated September 30, 2002, as granted the defendant’s 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. Ordered that the order is affirmed insofar as appealed from, with costs. The defendant established his prima facie entitlement to summary judgment by submitting, among other things, an affirmation of his examining physician, which indicated that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Kallicharan v Sooknanan, 282 AD2d 573, 574 [2001]; Santoro v Daniel, 276 AD2d 478 [2000]). Thus, it was incumbent on the plaintiff to come forward with admissible evidence to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]). We agree with the Supreme Court that the plaintiff failed to do so (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; see also Evans v Beebe, 267 AD2d 828, 829 [1999]; Delaney v Lewis, 256 AD2d 895, 897 [1998]). Thus, the Supreme Court properly granted the defendant’s motion for summary judgment. Santucci, J.P., Krausman, McGinity, Schmidt and Crane, JJ., concur.