Cable v. Fishman

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Dunn, J.), dated October 27, 1999, which denied their motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The defendants met their initial burden of establishing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and thus, it was incumbent upon the plaintiffs to come forward with admissible evidence to create an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiffs failed to do so (see, Cabri v Myung-Soo Park, 260 AD2d 525; Dyagi v Newburgh Auto Auction, 251 AD2d 619; Friedman v U-Haul Truck Rental, 216 AD2d 266), [578] and accordingly, the defendants’ motion should have been granted. O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.