ORDERED that the appeal of Adelhardt Construction Corp. is dismissed, as that defendant is not aggrieved by the order appealed from (see, CPLR 5511); and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that the third-party defendant is awarded one bill of costs payable by the defendant third-party plaintiff, Biordi, Inc."
The Supreme Court correctly determined that the third-party defendant met its burden of proving, by competent admissible evidence (see, Gaddy v. Eyler, 79 N.Y.2d 995; Licari v. Elliott, 57 N.Y.2d 230), that the plaintiff's injuries, although clearly serious, did not rise to the level of "grave" injuries, within the meaning of Workers' Compensation Law — 11 (see, Curran v. Auto Lab Service Center, 280 A.D.2d 636; Bradt v. Lustig, 280 A.D.2d 739; Castro v. United Container Mach. Group, 273 A.D.2d 337, affd N.Y.2d [June 28, 2001]; Ibarra v. Equipment Control, 268 A.D.2d 13; Barbieri v. Mt. Sinai Hosp., 264 A.D.2d 1). In opposition to the motion, the appellant Biordi, Inc. (hereinafter Biordi), failed to demonstrate the existence of any genuine issues of fact. Accordingly, since the plaintiff did not sustain a grave injury, Biordi's third-party action was properly dismissed (see, Bardouille v. Structure-Tone, A.D.2d [2d Dept., Apr. 23, 2001]; Soto v. Alert No. 1 Alarm Systems, 272 A.D.2d 466; Miroe v. Miroe, 270 A.D.2d 400).
We note that certain dictum in Ibarra v. Equipment Control (supra), appears to suggest that a proponent of a motion for summary judgment seeking to dismiss a third-party action for want of grave injury is not obligated to prove, prima facie, that the plaintiff did not sustain a grave injury. This is not so and to this extent Ibarra v. Equipment Control (supra) should not be followed. Rather, a proponent of a motion for summary judgment dismissing a third-party complaint because the plaintiff did not sustain a grave injury, is required to make a prima facie showing of entitlement to judgment as a matter of law, much the same as a defendant seeking summary judgment dismissing a claim for non-economic damages for lack of serious injury under the No-Fault Insurance Law (Insurance Law — 5120[d]; see, Way v. Grantling, 186 Misc.2d 110; Harris v. Metropolitan Life Ins. Co., 183 Misc.2d 431). As the third-party defendant herein made that requisite showing, and Biordi failed to rebut it, summary judgment was properly granted to the third-party defendant, dismissing Biordi's third-party complaint.
Biordi's remaining contentions are without merit.
SANTUCCI, J.P., GOLDSTEIN, S. MILLER and FRIEDMANN, JJ., concur.