Dunn v. Horseless Carriage Cab Service, Inc. (249 A.D.2d 357, 1998)

—In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Hillery, J.), dated February 18, 1997, as, upon reargument, denied their motion for summary judgment dismissing the complaint on the ground that the injured 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 defendants’ motion is granted, and the complaint is dismissed.

The defendants met their initial burden of establishing prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). It was thereupon 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). The plaintiffs having failed to do so (see, Friedman v U-Haul Truck Rental, 216 AD2d 266; Pagano v Kingsbury, 182 AD2d 268; Beckett v Conte, 176 AD2d 774), the defendants are entitled to summary judgment (see, Licari v Elliott, 57 NY2d 230). Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.