Barrera v. City of New York

—In an action, inter alia, to recover damages for personal injuries, the defendants Thomas Williams, New York City Housing Department of Police, and New York City Housing Authority Department of Police appeal from an order of the Supreme Court, Queens County (LeVine, J.), dated February 23, 1999, which denied their motion for summary judgment dismissing the complaint and all cross claims 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, on the law, with costs, the appellants’ motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The appellants met their initial burden of demonstrating, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent upon the plaintiff to come forward with admissible evidence to create an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff failed to do so, and thus, summary judgment should have been granted dismissing the complaint and all cross claims insofar as asserted against the appellants (see, Licari v Elliott, 57 NY2d 230). Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.