Shapiro v. Westbrook

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Doyle, J.), dated May 11, 1999, which granted the motion of the defendants Tinesha L. Westbrook and Jerome Davis for summary judgment dismissing the complaint insofar as asserted against them, and upon searching the record, awarded summary judgment to the defendant Paul Coyle dismissing the complaint insofar as asserted against him, on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2) an order of the same court dated July 26, 1999, which denied the plaintiffs’ motion for reargument.

Ordered that the appeal from the order dated July 26, 1999, is dismissed, as no appeal lies from an order denying a motion for reargument; and it is further,

Ordered that the order dated May 11, 1999, is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The Supreme Court properly granted the defendants summary judgment. A prima facie case was established that the injured plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent on the plaintiffs to come forward with admissible evidence to create an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). We agree with the Supreme Court that the plaintiffs failed to do so (see, Williams v Hughes, 256 AD2d 461; Bone v Gottlieb, 240 AD2d 610; Almonacid v Meltzer, 222 AD2d 631; Friedman v U-Haul Truck Rental, 216 AD2d 266; Crane v Richard, 180 AD2d 706; Beckett v Conte, 176 AD2d 774). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.