FEST v. AGNEW

Ordered that the order is affirmed, with costs.

The defendant Sergey Barbashov established his prima facie entitlement to judgment as a matter of law by submitting evidence, including the plaintiff's deposition testimony and the affirmation of Barbashov's retained examining orthopedist, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) ( see Charley v Goss, 12 NY3d 750; Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; Luckey v Bauch, 17 AD3d 411; Sims v Megaris, 15 AD3d 468; Check v Gacevk, 14 AD3d 586; Paul v Trerotola, 11 AD3d 441; Mastaccioula v Sciarra, 11 AD3d 434). In opposition, the plaintiff failed to raise a triable issue of fact.