JUSINO v. GALLAGHER (2001)

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Kitson, J.), dated March 15, 2001, as denied his cross motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

In support of his cross motion, the defendant submitted papers indicating that the injured plaintiff sustained herniated and bulging discs as a result of the accident at issue.   The defendant then failed to submit sufficient evidence to establish that those injuries were not causally related to the accident, or were not serious within the meaning of Insurance Law § 5102(d).   Thus, the defendant failed to meet his burden of establishing his entitlement to judgment as a matter of law (see, Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604;  Flanagan v. Hoeg, 212 A.D.2d 756, 624 N.Y.S.2d 853). Under these circumstances, we need not consider whether the plaintiffs' papers were sufficient to raise a triable issue of fact (see, Chaplin v. Taylor, supra;  Mariaca-Olmos v. Mizrhy, supra).