Errico v. Healy

245 A.D.2d 335, 666 N.Y.S.2d 25, 1997 N.Y. App. Div. LEXIS 12870

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 1997
• Status: Published

Opinion

—In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (LeVine, J.), dated February 25, 1997, which granted the defendants’ 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). The appeal brings up for review so much of an order of the same court, dated April 18, 1997, as, upon reargument, adhered to the original determination (see, CPLR 5517 [b]).

Ordered that the appeal from the order dated February 25, 1997, is dismissed, as that order was superseded by the order dated April 18, 1997, made upon reargument; and it is further,

Ordered that the order dated April 18, 1997, is affirmed insofar as reviewed; and it is further,

Ordered that the respondents are awarded one bill of costs.

We agree with the Supreme Court that the plaintiffs failed to establish an issue of fact as to whether the injured plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see, Licari v Elliott, 57 NY2d 230). Bracken, J. P., Pizzuto, Altman, Krausman and Lerner, JJ., concur.