Shmukler v. Shpilberg

—In an action to recover damages for personal injuries, the defendants Rosario Grasso and Leonardo Grasso appeal from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated September 12, 2002, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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 insofar as appealed from, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed. The appellants established their prima facie entitlement to summary judgment by submitting, among other things, affirmations of their examining physicians, 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 [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]). The plaintiff failed to meet that burden (see Ginty v MacNamara, 300 AD2d 624 [2002]; Philippe v Ivory, 297 AD2d 666 [2002]; Goldin v Lee, 275 AD2d 341 [2000]; Soto v Fogg, 255 AD2d 502 [1998]). Ritter, J.P., Feuerstein, McGinity, Townes and Cozier, JJ., concur.