General
Graciela B. Martinez, Appellant, et al., Plaintiff, v. Rodolfo S. Bernal et al., Respondents
303 A.D.2d 726756 N.Y.S.2d 864·New York Supreme Court, Appellate Division·2003·NY
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Opinion
Graciela B. Martinez, Appellant, et al., Plaintiff, v Rodolfo S. Bernal et al., Respondents.
[756 NYS2d 864]
[MAJORITY]
—In an action to recover damages for personal injuries, etc., the plaintiff Graciela B. Martinez appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered February 28, 2002, which granted the defendants’ motion for summary judgment dismissing the complaint insofar as asserted by her on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants established a prima facie showing of entitlement to summary judgment by demonstrating that the plaintiff Graciela B. Martinez did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Thus, it was incumbent on her to come forward with admissible evidence to create an issue of fact (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). She failed to do so (see Friedman v U-Haul Truck Rental, 216 AD2d 266 [1995]), and thus, the defendants were entitled to summary judgment dismissing the complaint insofar as asserted by the appellant. Feuerstein, J.P., Goldstein, H. Miller and Rivera, JJ., concur.