Anna M. Cordi, Appellant, v. Roy L. Dogan et al., Respondents

Anna M. Cordi, Appellant, v Roy L. Dogan et al., Respondents. [705 NYS2d 243] [MAJORITY] —In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Doyle, J.), entered February 24, 1999, which, upon an order of the same court dated January 19, 1999, granting the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), is in favor of the defendants and against her, dismissing the complaint. Ordered that the judgment is reversed, on the law, with costs, the motion is denied, the complaint is reinstated, and the order dated January 19, 1999, is modified accordingly. The evidence submitted by the defendants demonstrated prima facie that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent on the plaintiff to come forward with admissible proof to create an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiffs medical evidence was sufficient to raise such an issue, and therefore, the Supreme Court improperly granted the defendants’ motion for summary judgment (see, Naiman-Michaels v Fisk, 265 AD2d 463; Shokrian v Zi-Min Mein, 265 AD2d 317). O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.