Ayala v. Reyes

66 A.D.2d 790, 411 N.Y.S.2d 40, 1978 N.Y. App. Div. LEXIS 14080

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1978
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Kings County, dated June 21, 1977, which denied their motion to dismiss the action. Order reversed, on the law, without costs or disbursements, and motion granted. Plaintiff was injured in an automobile accident in October, 1975. Defendants moved to dismiss the action on the ground that it was barred by the Comprehensive Automobile Insurance Reparations Act (see Insurance Law, § 670 et seq.). A hearing was held on the motion before a referee designated to hear and determine the issues. Plaintiff established that his right hand, three fingers of which had been amputated after an accident in 1972, had been fractured in the accident which was the subject of this action. However, plaintiff did not offer any medical evidence on the nature of the fracture, or on its effect (see Insurance Law, § 671, subd 4). He did not show the nature or extent of any disability resulting from the fracture. Nor did plaintiff’s medical and hospital bills exceed $500. Plaintiff did not meet his burden of proof. The motion to dismiss should have been granted. Plaintiff should pursue his remedies under the Comprehensive Automobile Insurance Reparations Act. Gulotta, J. P., Cohalan, Margett and O’Connor, JJ., concur.