Merlo v. Pupke

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated October 29, 1999, which granted the motion of the defendants Antonio S. Mazzarella and Paul Mazzarella, in which the defendants Maria A. Pupke and Frederick J. Pupke joined, for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed, with one bill of costs. The defendants made a prima facie showing that the plaintiff [605] did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent on the plaintiff to come forward with admissible evidence sufficient to raise an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff failed to do so (see, Guzman v Michael Mgt., 266 AD2d 508; Turchuk v Town of Wallkill, 255 AD2d 576; Phillips v Costa, 160 AD2d 855; see also, Scheer v Koubek, 70 NY2d 678). Mangano, P. J., S. Miller, McGinity, Luciano and Smith, JJ., concur.