Cullum v. Washington

227 A.D.2d 370, 642 N.Y.S.2d 86, 1996 N.Y. App. Div. LEXIS 4934

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1996
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 21, 1995, which granted the defendant’s motion for summary judgment dismissing the complaint for failure to establish the existence of a serious injury as defined in Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendant submitted proof in admissible form which established that the infant plaintiff had not suffered a "serious injury” within the meaning of Insurance Law § 5102 (d). The burden thus shifted to the plaintiffs to demonstrate the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955).

The plaintiffs failed to meet this burden. The medical evidence submitted by the plaintiffs in opposition to the defendant’s motion did not establish that the infant plaintiff sustained a permanent injury or a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180 day period immediately following the injury (see, Insurance Law § 5102 [d]). Moreover, the infant plaintiff’s self-serving and contradictory comments concerning her inability to perform her usual and customary daily activities for three months after the accident, without more, are insufficient to defeat a motion for summary judgment (see, Atamian v Mintz, 216 AD2d 430; Phillips v Costa, 160 AD2d 855). O’Brien, J. P., Ritter, Pizzuto and Altman, JJ., concur.