| Fest v Agnew |
| 2009 NY Slip Op 09612 [68 AD3d 1051] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Gennadiy Fest, Appellant, v Diane Agnew et al.,Defendants, and Sergey Barbashov, Respondent. |
—[*1] James G. Bilello, Westbury, N.Y. (Patricia McDonagh of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Solomon, J.), dated December 11, 2008, which granted themotion of the defendant Sergey Barbashov for summary judgment dismissing the complaintinsofar as asserted against him on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendant Sergey Barbashov established his prima facie entitlement to judgment as amatter of law by submitting evidence, including the plaintiff's deposition testimony and theaffirmation of Barbashov's retained examining orthopedist, that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) (see Charley vGoss, 12 NY3d 750 [2009]; Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Luckey v Bauch, 17 AD3d 411[2005]; Sims v Megaris, 15 AD3d 468 [2005]; Check v Gacevk, 14 AD3d 586[2005]; Paul v Trerotola, 11 AD3d 441 [2004]; Mastaccioula v Sciarra, 11 AD3d434 [2004]). In opposition, the plaintiff failed to raise a triable issue of fact. Rivera, J.P.,Covello, Angiolillo, Leventhal and Roman, JJ., concur.