QUADROZZI v. SALAKO (1999)

In an action to recover damages for personal injuries, etc., the defendants Adedayo Salako and Thomas Salako appeal from an order of the Supreme Court, Queens County (LaTorella, J.), dated November 16, 1998, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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 reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

Contrary to the determination of the Supreme Court, the appellants established a prima facie case that the injured plaintiff did not suffer a serious injury in the subject collision (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   Thus, the burden shifted to the plaintiffs to come forward with sufficient evidence that the injured plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) (see, Licari v. Elliott, 57 N.Y.2d 230, 235, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130).   As the plaintiffs offered no evidence in opposition to the appellants' motion, they did not raise a triable question of fact on the issue.   Therefore, the appellants' motion for summary judgment should have been granted.

MEMORANDUM BY THE COURT.