Baldasty v. Cooper

Appellate Division of the Supreme Court of New York

Baldasty v. Cooper

238 A.D.2d 367, 656 N.Y.S.2d 332, 1997 N.Y. App. Div. LEXIS 3862

Appellate Division of the Supreme Court of the State of New York·Decided April 14, 1997·Published·Cited by 7 cases

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Dutchess County (Hillery, J.), dated July 29, 1996, which, upon a determination of the same court dated July 9, 1996, granting the defendants’ motion for summary judgment, dismissed his complaint.

Ordered that the judgment is affirmed, with costs.

The defendants established, through the plaintiff’s deposition testimony, that the plaintiff suffered only intermittent shoulder pain, a prima facie case that the plaintiff did not suffer "serious injury” within the meaning of Insurance Law § 5102 (d) (see, Craft v Brantuk, 195 AD2d 438; Tatti v Cummings, 193 AD2d 596; Stadier v Findley, 148 AD2d 600). The plaintiff’s affidavit, which contained only subjective complaints of pain and the affirmed medical report of his treating physician, whose diagnosis was based on those subjective complaints of pain, was insufficient to raise a triable issue of fact (see, Lincoln v Johnson, 225 AD2d 593; Barrett v Howland, 202 AD2d 383). Bracken, J. P., O’Brien, Santucci, Friedmann and Goldstein, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Dutchess County (Hillery, J.), dated July 29, 1996, which, upon a determination of the same court dated July 9, 1996, granting the defendants’ motion for summary judgment, dismissed his complaint.

Ordered that the judgment is affirmed, with costs.

The defendants established, through the plaintiff’s deposition testimony, that the plaintiff suffered only intermittent shoulder pain, a prima facie case that the plaintiff did not suffer "serious injury” within the meaning of Insurance Law § 5102 (d) (see, Craft v Brantuk, 195 AD2d 438; Tatti v Cummings, 193 AD2d 596; Stadier v Findley, 148 AD2d 600). The plaintiff’s affidavit, which contained only subjective complaints of pain and the affirmed medical report of his treating physician, whose diagnosis was based on those subjective complaints of pain, was insufficient to raise a triable issue of fact (see, Lincoln v Johnson, 225 AD2d 593; Barrett v Howland, 202 AD2d 383). Bracken, J. P., O’Brien, Santucci, Friedmann and Goldstein, JJ., concur.

Baldasty v. Cooper, 238 A.D.2d 367, 656 N.Y.S.2d 332, 1997 N.Y. App. Div. LEXIS 3862 (N.Y. Ct. App. 1997).

Pincite

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