John C. LoPresti, Respondent, v. John J. McNiff, Appellant

John C. LoPresti, Respondent, v John J. McNiff, Appellant. [709 NYS2d 832] [MAJORITY] —In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Thomas, J.), dated July 2, 1999, which denied his 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 reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The defendant submitted evidence establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). In opposition, the plaintiff failed to produce evidentiary proof in admissible form demonstrating the existence of a material issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957; Dimenshteyn v Caruso, 262 AD2d 348; Russell v City of Mount Vernon, 256 AD2d 454; DiNunzio v County of Suffolk, 256 AD2d 498; Medina v Zalmen Reis & Assocs., 239 AD2d 394; Almonacid v Meltzer, 222 AD2d 631). Joy, J. P., Thompson, Goldstein and Feuerstein, JJ., concur.