This is a case being heard in the Supreme Court of Kings County. The defendant has moved for a summary judgment in this case to dismiss the complaint made against the plaintiff based on the ground that the plaintiff did not sustain a serious injury within the requirements of Insurance Law section 5102.
The plaintiff began this instant action against the defendant in March of 2010 by filing a summons and instant complaint with the Kings County Clerk’s office. The defendant joined the action by verified answer in April of 2010. A note of issue was filed regarding the case in November of 2010.
The plaintiff’s action in the case is to recover damages for personal injuries that were sustained as a result of a car accident. The plaintiff alleges in both the complaint and the bill of particulars that at around 7:50 in the morning on the 23rd of January, 2010, the defendant negligently drove through a stop sign located at the intersection of Colonial Road and 73rd Street in Kings County. This negligent act caused the defendant to hit the vehicle of the plaintiff and caused serious injuries to the plaintiff.
The defendant has offered motion papers in the case that consist of an affirmation from the attorney as well as five annexed exhibits. The first exhibit is the copy of the instant summons. The second exhibit is a copy of the answer provided by the defendant. The third exhibit is a copy of the verified bill of particulars from May of 2010. The fourth exhibit is a copy of the transcript of plaintiff’s deposition from October, 2010. The final exhibit is a copy of the expert witness disclosure that has been prepared for this case in particular.
Court Discussion and Decision
It has been established that in order for a summary judgment to be granted in any case there can be no evidence that there are any triable issues of fact in the case. The party that is moving for the summary judgment has the burden to show prima facie that he or she is entitled to a summary judgment. Failure to prove this will result in a summary judgment motion being denied.
To support the argument that the plaintiff’s injuries do not meet the requirements of a serious injury under the Insurance Laws, the defendant has offered an examination from an expert witness who is an orthopedic surgeon. The surgeon concluded that the plaintiff did not have any objective findings to support the claim of a serious injury.
The plaintiff did not show up in court on this day and has not submitted any type of written opposition to the motion for summary judgment.
It is the opinion of the court that the defendant has met the burden of showing prima facie in this particular case and the burden now shifts to the plaintiff to show that there is a triable issue of fact in the matter. The plaintiff has failed to do this and for this reason the court is ruling in favor of the defendant. The motion to dismiss the complaint is granted.
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