| Zawaski v Salzano |
| 2010 NY Slip Op 07533 [77 AD3d 823] |
| October 19, 2010 |
| Appellate Division, Second Department |
| Jonathan Zawaski, Respondent, v Louis Salzano,Appellant. |
—[*1] Johannesen & Johannesen, PLLC, Rocky Point, N.Y. (Annmarie R. Johannesen of counsel),for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Costello, J.), dated January 14, 2010, which granted theplaintiff's motion for summary judgment on the issue of liability, and denied his cross motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, the defendant's cross motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) is granted, and theplaintiff's motion for summary judgment on the issue of liability is denied as academic.
In support of his cross motion, the defendant met his prima facie burden of showing that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) asa result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; see also Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50[2005]). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff failed tosubmit any affirmations or affidavits of his treating physicians, or medical records in admissibleform indicating what treatment, if any, he received for his alleged injuries (see Kivelowitz v Calia, 43 AD3d1111 [2007]).
Since the plaintiff failed to raise a triable issue of fact in opposition, the Supreme Courtshould have granted the defendant's cross motion for summary judgment dismissing thecomplaint. Accordingly, the plaintiff's motion for summary judgment on the issue of liabilityshould have been denied as academic (see Kuperberg v Montalbano, 72 AD3d 903 [2010]). Skelos, J.P.,Santucci, Angiolillo, Hall and Roman, JJ., concur.