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

Eileen FORTINI, et al., Appellants, v. Brenda PLOTKIN, et al., Respondents.

Decided: October 26, 1998

MILLER, J.P., THOMPSON, PIZZUTO, McGINITY and LUCIANO, JJ. Chelli & Bush, Staten Island, N.Y. (Marvin Ben-Aron of counsel), for appellants. Frank V. Merlino, Garden City, N.Y. (Arthur B. Colligan of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Cusick, J.), dated October 17, 1997, which granted the defendants' 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 reversed, with costs, the motion is denied, and the complaint is reinstated.

Once the defendants submitted evidence demonstrating that the plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), the burden shifted to the plaintiffs to produce evidentiary proof in admissible form demonstrating 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).   The plaintiffs met their burden through the submission of an affidavit by the injured plaintiff which raised an issue of fact as to whether the injury she sustained, which was confirmed by objective medical testing, prevented her from “performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” (Insurance Law § 5102[d] ).


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