Francois v. U-Haul of Bellrose

284 A.D.2d 369, 725 N.Y.S.2d 892, 2001 N.Y. App. Div. LEXIS 6094

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 11, 2001
• Status: Published

Opinion

—In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Milano, J.), entered May 4, 2000, which, upon granting the defendants’ motion for summary judgment, dismissed the complaint on the ground that the plaintiffs Yvenet Francois, Marsellus Disale, Paula Isidore, and Rody Isidore did not sustain serious injuries within the meaning of Insurance Law § 5102 (d).

Ordered that the appeal by the plaintiff Monclace Francois is dismissed as abandoned; and it is further,

Ordered that the order and judgment is affirmed insofar as reviewed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The defendants made a prima facie showing that the plaintiffs Yvenet Francois, Marsellus Disale, Paula Isidore, and Rody Isidore did not sustain serious injuries within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent on those plaintiffs to come forward with admissible evidence to raise an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). We agree with the Supreme Court that those plaintiffs failed to do so (see, Pramnieks v Bush, 272 AD2d 596; Gross-man v Wright, 268 AD2d 79; Shay v Jerkins, 263 AD2d 475; Dimenshteyn v Caruso, 262 AD2d 348; Friedman v U-Haul Truck Rental, 216 AD2d 266).

We note that the order and judgment of the Supreme Court dismissed the entire complaint, including the cause of action of the plaintiff Monclace Francois to recover for property damage. That plaintiff has abandoned any arguments with respect to the dismissal of that cause of action, and thus, we do not reach the issue. O’Brien, J. P., Krausman, Schmidt and Crane, JJ., concur.