Caruso v. Rotondi

248 A.D.2d 425, 668 N.Y.S.2d 948, 1998 N.Y. App. Div. LEXIS 2325

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated May 19,1997, which granted the defendant’s motion for summary judgment dismissing the complaint based on the plaintiffs failure to sustain a serious injury as defined by Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The plaintiffs statements in his affidavit concerning his inability to perform his usual and customary daily activities for three to four months after the accident, without more, were insufficient to defeat the defendant’s motion for summary judgment (see, Cullum v Washington, 227 AD2d 370). Notably, the plaintiff, a retired widower who lived alone, failed to explain who performed household chores and shopped for him during this period of time.

Contrary to the plaintiffs contention, the medical reports which were submitted by the defendant in support of the motion were properly affirmed pursuant to CPLR 2106 and, therefore, had “the same force and effect of an affidavit” (CPLR 2106).

Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.