Branca v. Story

Appellate Division of the Supreme Court of New York

Branca v. Story

245 A.D.2d 479, 666 N.Y.S.2d 480, 1997 N.Y. App. Div. LEXIS 13247

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

DecidedDecember 22, 1997

StatusPublished

This text of 245 A.D.2d 479 (Branca v. Story) 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

Branca v. Story, 245 A.D.2d 479, 666 N.Y.S.2d 480, 1997 N.Y. App. Div. LEXIS 13247 (N.Y. Ct. App. 1997).

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Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated January 14, 1997, which denied his motion for summary judgment dismissing the complaint.

[480]*480Ordered that the order is reversed, on the law, with costs, the defendant’s motion is granted, and the complaint is dismissed.

The defendant submitted proof in admissible form which established that the plaintiff had not suffered a “serious injury” within the meaning of Insurance Law § 5102 (d). The burden thus shifted to the plaintiff to demonstrate the existence of a triable issue of fact (e.g., McHaffie v Antieri, 190 AD2d 780; see also, Grasso v Angerami, 79 NY2d 813). The plaintiff failed to meet this burden.

The affidavit submitted by the plaintiff’s treating chiropractor referred to soft tissue injury and was conclusory in describing the duration of her injury (see, Scheer v Koubek, 70 NY2d 678; Gaddy v Eyler, 79 NY2d 955; Licari v Elliott, 57 NY2d 230; Matter of American Home Assur. Co. v Montilus, 234 AD2d 543; Duvivier v Bruso, 221 AD2d 411; Orr v Miner, 220 AD2d 567). Under the circumstances, the defendant’s motion for summary judgment dismissing the complaint should have been granted. Rosenblatt, J. P., O’Brien, Thompson, Friedmann and Goldstein, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated January 14, 1997, which denied his motion for summary judgment dismissing the complaint.

[480]*480Ordered that the order is reversed, on the law, with costs, the defendant’s motion is granted, and the complaint is dismissed.

The defendant submitted proof in admissible form which established that the plaintiff had not suffered a “serious injury” within the meaning of Insurance Law § 5102 (d). The burden thus shifted to the plaintiff to demonstrate the existence of a triable issue of fact (e.g., McHaffie v Antieri, 190 AD2d 780; see also, Grasso v Angerami, 79 NY2d 813). The plaintiff failed to meet this burden.

The affidavit submitted by the plaintiff’s treating chiropractor referred to soft tissue injury and was conclusory in describing the duration of her injury (see, Scheer v Koubek, 70 NY2d 678; Gaddy v Eyler, 79 NY2d 955; Licari v Elliott, 57 NY2d 230; Matter of American Home Assur. Co. v Montilus, 234 AD2d 543; Duvivier v Bruso, 221 AD2d 411; Orr v Miner, 220 AD2d 567). Under the circumstances, the defendant’s motion for summary judgment dismissing the complaint should have been granted. Rosenblatt, J. P., O’Brien, Thompson, Friedmann and Goldstein, JJ., concur.

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Bluebook (online)

245 A.D.2d 479, 666 N.Y.S.2d 480, 1997 N.Y. App. Div. LEXIS 13247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branca-v-story-nyappdiv-1997.

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