
    Michael F. Hart, Appellant, v Tony DiPiazza, Respondent.
    [767 NYS2d 904]
   —In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Kitzes, J.), entered August 9, 2002, which upon the granting of the defendant’s motion pursuant to CPLR 4401 made at the close of the plaintiffs case to dismiss the complaint for failure to establish a prima facie case, is in favor of the defendant and against him dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly determined that the plaintiff did not make out a prima facie case. Ritter, J.P., Smith, Goldstein and H. Miller, JJ., concur.  