Ferdinand v. Appanna

Defendant has submitted competent medical evidence including the affirmation of his examining orthopedist and radiologist and the plaintiffs deposition testimony which establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) as a result of the accident. (See, Gaddy v. Eyler, 79 NY2d 955 [1992]; Jackson v. New York City Tr. Auth., 273 AD2d 200 [2000]; Greene v. Miranda, 272 AD2d 441 [2000]). Thus, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting competent medical proof. (see, Gaddy v. Eyler, supra; Licari v. Elliott, 57 NY2d 230, 235 [1982]; Lopez v. Senatore, 65 NY2d 1017 [1985]).