705 N.Y.S.2d 283 | N.Y. App. Div. | 2000
—In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Richmond County (Cusick, J.), dated July 30, 1998, which granted the motion of the defendants third-party plaintiffs and that branch of the cross motion of the third-party defendant which were for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2), as limited by her brief, from so much of an order of the same court dated July 1, 1999, as upon, in effect, granting reargument, adhered to the original determination.
Ordered that the appeal from the order dated July 30, 1998, is dismissed, as that order was superseded by the order dated July 1, 1999, made upon reargument; and it is further,
Ordered that the order dated July 1, 1999, is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.
The medical evidence submitted by the defendants third-party plaintiffs in support of their motion established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955). The evidence which the plaintiff submitted in opposition failed to raise a triable issue of fact (see, CPLR 3212 [b]).
Upon, in effect, granting reargument, the Supreme Court properly adhered to its original determination (see, Matter of Allstate Ins. Co. v Negron, 262 AD2d 407). O’Brien, J. P., Altman, McGinity and Smith, JJ., concur.