Soto v. Enterprise Rent A Car ( 2001 )

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Kings County .(Pincus, J.), dated February 14, 2000, which granted the defendants’ motion for summary judgment and dismissed the complaint on the ground that the infant plaintiff, Angel Soto, did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order and judgment is affirmed, with costs.

The affirmed report prepared by an orthopedist, Dr. William J. Kulak, which the defendants submitted in support of their motion, established a prima facie case that the infant plaintiff, Angel Soto, did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955). The medical evidence submitted by the plaintiffs in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]). We note that the Supreme Court providently exercised its discretion in refusing to consider a physician’s affidavit which was submitted by the plaintiffs after the return date of the motion (see, Risucci v Zeal Mgt. Corp., 258 AD2d 512). Bracken, Acting P. J., Santucci, Altman and Florio, JJ., concur.