Fredriksen v. Dow Tsan

—In an action to recover damages for personal injuries, the defendant Vincent C. Salvia appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated June 12, 1998, as denied his motion for summary judgment dismissing the complaint on behalf of the plaintiff Myrna Fredriksen insofar as asserted against him, on the ground that she 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 motion is granted, and so much of the complaint as seeks to recover damages on behalf of Myrna Fredriksen is dismissed insofar as asserted against the appellant.

The appellant met his initial burden of establishing prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff Myrna Fredriksen did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). It was therefore incumbent on that plaintiff to come forward with admissible evidence to create an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff Myrna Fredriksen failed to do so, and thus, the appellant is entitled to summary judgment dismissing the complaint on behalf of Myrna Fredriksen insofar as asserted against him (see, Licari v Elliott, 57 NY2d 230). O’Brien, J. P., Ritter, Joy, Altman and Smith, JJ., concur.