Nodine v. Vitelli

288 A.D.2d 451, 733 N.Y.S.2d 889, 2001 N.Y. App. Div. LEXIS 11432

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), entered March 15, 2001, as denied their motion 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).

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendants made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Kallicharan v Sooknanan, 282 AD2d 573; Santoro v Daniel, 276 AD2d 478). Thus, it was incumbent upon the plaintiff 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 the plaintiff met her burden (cf, Grossman v Wright, 268 AD2d 79; Friedman v U-Haul Truck Rental, 216 AD2d 266).

Under the circumstances, the plaintiff, a nonappealing party, is precluded from challenging so much of the order as denied her cross motion for summary judgment on the issue of liability (see, Hecht v City of New York, 60 NY2d 57; Estevez v Manos, 264 AD2d 754). Ritter, J. P., Goldstein, Friedmann, Feuerstein and Crane, JJ., concur.