Opinion
June 5, 2000.
In an action to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 20, 1999, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that neither of them sustained a serious injury within the meaning of Insurance Law § 5102 (d), and (2) an order of the same court, dated July 15, 1999, which denied their motion, in effect, for leave to reargue the prior motion.
O'BRIEN, J. P., SULLIVAN, GOLDSTEIN, LUCIANO AND FEUERSTEIN, JJ.
Ordered that the appeal from the order dated July 15, 1999, is dismissed; and it is further,
Ordered that the order dated January 20, 1999, is affirmed; and it is further,
Ordered that the resopndents are awarded one bill of costs.
Since the plaintiffs' motion, denominated as one for renewal and reargument, was not based upon new evidence which was unavailable at the time of the original motion, it was actually a motion for reargument (see, Citibank v. Olson, 204 A.D.2d 381; Chiarella v. Quitoni, 178 A.D.2d 502). The appeal from the order denying that motion must therefore be dismissed, as no appeal lies from an order denying reargument (see, Schumer v. Levine, 208 A.D.2d 605; DeFreitas v. Board of Educ., 129 A.D.2d 672).
As to the appeal from the order granting the defendants' motion for summary judgment dismissing the complaint, the defendants met their initial burden of establishing that neither of the plaintiffs sustained a serious injury within the the meaning of Insurance Law § 5102 (d). Thus, it was incumbent upon the plaintiffs to come forward with admissible evidence sufficient to create a triable issue of fact (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957). The plaintiffs failed to do so (see, Smith v. Askew, 264 A.D.2d 834; Lincoln v. Johnson, 225 A.D.2d 593; Giannakis v. Paschilidou, 212 A.D.2d 502, 503; Antoniou v. Duff, 204 A.D.2d 670; Grossman v. Wright, 268 A.D.2d 79).