Americo Franco v Choudry M. Akram

Franco v Akram 2006 NY Slip Op 01457 [26 AD3d 461] February 28, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 19, 2006

Americo Franco et al., Appellants,
v
Choudry M. Akram et al., Respondents.

—[*1]In an action to recover damages for personal injuries, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Kings County (Johnson, J.), dated July 2, 2004, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) and dismissed the complaint.

Ordered that the order and judgment is affirmed, with one bill of costs.

The defendants established, prima facie, that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d), thereby shifting the burden to the plaintiffs to submit sufficient evidence to raise a triable issue of fact on that issue (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, contrary to the plaintiffs' contentions, the Supreme Court properly determined that their medical submissions failed to establish that either plaintiff sustained a serious injury as a result of the subject accident (see Franchini v Palmieri, 1 NY3d 536 [2003]; Clark v Perry, 21 AD3d 1373 [2005]; Montgomery v Pena, 19 AD3d 288 [2005]). Moreover, neither plaintiff submitted any competent medical evidence to corroborate their claims that they were unable to perform substantially all of their daily activities for not less than 90 of the 180 days immediately following the subject accident as a result of the accident (see Sainte-[*2]Aime v Ho, 274 AD2d 569 [2000]). Santucci, J.P., Luciano, Fisher and Covello, JJ., concur.