Cotto v. Metropolitan Suburban Bus Authority

273 A.D.2d 191, 709 N.Y.S.2d 435, 2000 N.Y. App. Div. LEXIS 6240

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 2000
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants Metropolitan Suburban Bus Authority and Kenneth H. Bean appeal from an order of the Supreme Court, Nassau County (Bucaria, J.), entered October 27, 1998, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Carl Cotto 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 motion is granted, the complaint is dismissed insofar as asserted against the defendants Metropolitan Suburban Bus Authority and Kenneth H. Bean, and the action against the remaining defendant is severed.

The respondents made a prima facie showing that the plaintiff Carl Cotto did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent on the plaintiffs to come forward with sufficient admissible evidence to create an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiffs failed to do so (see, Williams v Hughes, 256 AD2d 461; Friedman v U-Haul Truck Rental, 216 AD2d 266; Kauderer v Renta, 261 AD2d 365; Stowe v Simmons, 253 AD2d 422; Grossman v Wright, 268 AD2d 79). O’Brien, J. P., Sullivan, Goldstein, Luciano and Feuerstein, JJ., concur.