Almonacid v. Meltzer

222 A.D.2d 631, 635 N.Y.S.2d 690, 1995 N.Y. App. Div. LEXIS 13939

Opinion

—In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (O’Brien, J.), dated September 19, 1994, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Once the defendants submitted evidence establishing that the plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d), the burden shifted to the plaintiff to produce evidentiary proof in admissible form demonstrating the existence of a triable issue of fact (Jacondino v Lovis, 186 AD2d 109, 110; see, Gaddy v Eyler, 79 NY2d 955, 956-957; Tatti v Cummings, 193 AD2d 596). The affidavit of the plaintiff’s treating chiropractor consisted of conclusory assertions tailored to meet statutory requirements (see, Lopez v Senatore, 65 NY2d 1017,1019) and was, thus, insufficient to raise a triable issue of fact (Marshall v Albano, 182 AD2d 614). Similarly, the plaintiff’s affidavit consisted of merely subjective complaints of pain and was also insufficient to raise a triable issue of fact (see, Iaria v Romero, 194 AD2d 769). O’Brien, J. P., Ritter, Friedmann and Goldstein, JJ., concur.