Rao v. Boyle

In two actions to recover damages for personal injuries which were joined for trial, Carol Ann Rao, the plaintiff in both actions, appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated September 30, 1999, which granted the motion of Frank Notarnicola, the defendant in Action No. 2, for summary judgment dismissing the complaint in that action on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The evidence submitted by Frank Notarnicola, the defendant in Action No. 2, including the affirmed medical reports of the physicians who examined the plaintiff on his behalf, established prima facie that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of an accident on October 8, 1994, involving Notarnicola’s vehicle. The burden therefore shifted to Rao to come forward with sufficient evidence to raise a triable issue of fact that she sustained a serious injury as a result of that accident (see, Gaddy v Eyler, 79 NY2d 955; Licari v Elliott, 57 NY2d 230). Rao’s evidence submitted in opposition to the motion was insufficient to raise a triable issue of fact (see, Grossman v Wright, 268 AD2d 79; Williams v Hughes, 256 AD2d 461), and the Supreme Court properly granted Notarnicola’s motion to dismiss the complaint in Action No. 2. O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.