Opinion
Submitted November 8, 2000.
December 19, 2000.
In an action to recover damages for personal injuries, etc., the defendants Avera Morrison and Sara Morrison appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), dated December 6, 1999, as denied their cross motion to dismiss the complaint insofar as asserted against them on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).
Richard J. Inzerillo, P.C., Bohemia, N.Y. (Daniel P. Gregory of counsel), for appellants.
Mallilo Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for respondents.
Before: GUY JAMES MANGANO, P.J., SONDRA MILLER, LEO F. McGINITY, DANIEL F. LUCIANO, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, the complaint is dismissed insofar as asserted against the defendants Avera Morrison and Sara Morrison, and the action against the remaining defendants is severed.
The plaintiffs, Joseph Falanga and David Alacqua, allegedly sustained injuries when their vehicle collided with two other vehicles, one of which was owned and operated by the appellants.
The physician's affirmation submitted by the appellants in support of their cross motion for summary judgment made out a prima facie case (see, CPLR 3212[b]) that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d). The burden therefore shifted to the plaintiffs to come forward with sufficient evidence to establish that they sustained serious injuries (see, Gaddy v. Eyler, 79 N.Y.2d 955). Since their submissions failed to raise triable issues of fact, the appellants ' cross motion should have been granted (see, Jiminez v. Kambli, 272 A.D.2d 581; Kauderer v. Penta, 261 A.D.2d 365; Medina v. Zalmen Reis Assoc., 239 A.D.2d 394),