Carrascov.Mendez

Appellate Division of the Supreme Court of New York, Second DepartmentMar 29, 2004
773 N.Y.S.2d 605 (N.Y. App. Div. 2004)

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2003-02134.

Decided March 29, 2004.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated January 24, 2003, which 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(d).

Ginsberg Katsorhis, P.C., Flushing, N.Y. (Kerry J. Katsorhis of counsel), for appellant.

Epstein, Grammatico, Gann, Frankini Marotta, Woodbury, N.Y. (Dennis S. Heffernan of counsel), for respondent.

Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, THOMAS A. ADAMS, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The defendant made a prima facie showing 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 Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v. Eyler, 79 N.Y.2d 955). The affirmation of the plaintiff's physician submitted in opposition to the defendant's motion was insufficient to raise a triable issue of fact.

Accordingly, the defendant was entitled to summary judgment dismissing the complaint.

SANTUCCI, J.P., SMITH, LUCIANO and ADAMS, JJ., concur.