Isakov v. Day

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated June 5, 2003, which denied his 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).

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

Once the defendant established a prima facie case that the plaintiff did not sustain a serious injury, the plaintiff was required to come forward with competent admissible evidence sufficient to raise an issue of fact (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Grossman v Wright, 268 AD2d 79 [2000]). However, the affirmation of the plaintiff’s physician submitted in opposition to the defendant’s motion failed to raise a triable issue of fact. Accordingly, the defendant was entitled to summary judgment in his favor dismissing the complaint. Adams, J.E, Cozier, Ritter and Skelos, JJ., concur.