COLE v. BRANDOFINO (2001)

Supreme Court, Appellate Division, Second Department, New York.

Michael COLE, Respondent, v. Jean BRANDOFINO, et al., Appellants.

Decided: February 05, 2001

LAWRENCE J. BRACKEN, Acting P.J., SONDRA MILLER, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ.

Robert P. Tusa, Garden City, N.Y. (David Holmes of counsel), for appellants. Steven R. Blyer, Valley Stream, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Franco, J.), dated April 4, 2000, which denied their 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.

The defendants established a prima facie case that the plaintiff's injuries were not serious through the affirmed report of a doctor who examined the plaintiff and concluded that his injuries were merely cervical and lumbar sprains which had been resolved (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The medical evidence submitted by the plaintiff in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212[b] ). Therefore, the motion should have been granted.

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