Orlando v. Medhurst

212 A.D.2d 764, 624 N.Y.S.2d 861, 1995 N.Y. App. Div. LEXIS 2208

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Suffolk County (Gowan, J.), dated March 27, 1993, which granted the motion by the defendant John Medhurst and the cross motion by the defendant Patrick J. Turturro for summary judgment dismissing the complaint, and (2) as limited by their brief, from so much of an order of the same court, entered November 8, 1993, as upon renewal, adhered to the determination in the order dated March 27, 1993.

Ordered that the appeal from the order dated March 27, 1993, is dismissed, as that order was superseded by the order entered November 8, 1993, made upon renewal; and it is further,

Ordered that the order entered November 8, 1993, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents appearing separately and filing separate briefs are awarded one bill of costs.

We agree with the Supreme Court that the plaintiffs failed to establish a prima facie case that the injured plaintiff suffered a "serious injury” within the meaning of Insurance Law § 5102 (d). Accordingly, the Supreme Court properly granted the motion and cross motion for summary judgment (see, Gaddy v Eyler, 79 NY2d 955; Scheer v Koubek, 70 NY2d 678; Licari v Elliott, 57 NY2d 230; Beckett v Conte, 176 AD2d 774). Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.