Frank Matonti, Appellant, v. Esther K. Tierno, Respondent

Frank Matonti, Appellant, v Esther K. Tierno, Respondent. [753 NYS2d 379] [MAJORITY] —In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (DeMaro, J.), entered November 20, 2001, as granted the defendant’s motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is reinstated. The defendant established her prima facie entitlement to summary judgment by submitting, among other things, the report of her examining physician, which indicated, through sufficient objective evidence, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955; Espinal v Galicia, 290 AD2d 528; Fisher v Cho Pyung Choi, 289 AD2d 523). In opposition, the plaintiff raised a triable issue of fact (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345). Accordingly, the Supreme Court erred in granting the defendant’s motion for summary judgment dismissing the complaint. Feuerstein, J.P., Krausman, Luciano, Townes and Cozier, JJ., concur.