Opinion
Decided October 26, 1995
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Mary M. Werner, J.
Perry Gary Fish, Brooklyn for appellant.
Richard J. Inzerillo, Smithtown, and Dennis M. Brown for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Defendant presented sufficient evidence to demonstrate plaintiff did not sustain serious injury within the meaning of Insurance Law § 5102 (d) as a matter of law. Plaintiff's evidence proffered in opposition to defendant's motion for summary judgment fails to establish a triable issue of fact concerning the permanency of the injuries alleged to constitute serious injury within the scope of Insurance Law § 5102 (d). Plaintiff's sole reliance upon allegations contained in his pleadings and bill of particulars to establish the permanent nature of his injuries is insufficient to defeat the prima facie showing made by defendant (see, Indig v Finkelstein, 23 N.Y.2d 728, 729).
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.