Sanfilippo v. VT Inc. ( 2000 )

In an action to recover damages for personal injuries, the defendants Bonnie E. Barnett and Douglas E. Barnett appeal from so much of an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated May 17, 2000, as denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them 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 reversed insofar as appealed from, on the law, with costs, the cross motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The appellants made a prima facie showing that the plaintiff 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 to raise an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff failed to do so, and thus, the appellants were entitled to summary judgment (see, Shay v Jerkins, 263 AD2d 475). Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.