SIMONETTI v. TINDEL WATERPROOFING RESTORATION INC (1999)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Berke, J.), entered June 5, 1998, which granted the defendants' 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 affirmed, with costs.

In support of their motion for summary judgment, the defendants submitted proof in admissible form which established that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).   The burden then shifted to the plaintiff to demonstrate the existence of a triable issue of fact (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   We agree with the Supreme Court that the plaintiff failed to meet this burden (see, Tabacco v. Kasten, 229 A.D.2d 526, 646 N.Y.S.2d 33;  Atamian v. Mintz, 216 A.D.2d 430, 628 N.Y.S.2d 367;  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 627 N.Y.S.2d 765).   Thus, the defendants were properly granted summary judgment (see, Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088).

MEMORANDUM BY THE COURT.