Almonacid v. Meltzer

Appellate Division of the Supreme Court of New York

Almonacid v. Meltzer

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 1995

StatusPublished

Cited by11 cases

This text of 222 A.D.2d 631 (Almonacid v. Meltzer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Almonacid v. Meltzer, 222 A.D.2d 631, 635 N.Y.S.2d 690, 1995 N.Y. App. Div. LEXIS 13939 (N.Y. Ct. App. 1995).

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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.

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—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.

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Bluebook (online)

222 A.D.2d 631, 635 N.Y.S.2d 690, 1995 N.Y. App. Div. LEXIS 13939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/almonacid-v-meltzer-nyappdiv-1995.

Opinion

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