Dirr v. Charnecki

154 A.D.2d 426, 546 N.Y.S.2d 7, 1989 N.Y. App. Div. LEXIS 12505

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1989
• Status: Published

Opinion

— In a negligence action, inter alia, to recover damages for personal injuries arising from an automobile accident, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Ingrassia, J.), dated October 19, 1988, as denied his motion for summary judgment dismissing the cause of action to recover damages for personal injuries.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the cause of action to recover damages for personal injuries is dismissed and severed from the cause of action to recover damages for injury to property.

The affirmation submitted by the plaintiff’s physician in opposition to the defendant’s motion to dismiss states in conclusory language that the plaintiff "sustained a fracture of the ribs on the right side, which by definition is a serious injury”, and that the "negative x-ray report is not conclusive of the diagnosis because such rib fractures are often not demonstrated radiologically, but in this case have been diagnosed by me based upon my clinical examination”. The affirmation fails to specifically explain which ribs were fractured and the nature of the clinical examination. The unspecific and conclusory affirmation appears to be "tailored to meet statutory requirements,” and is thus insufficient to raise a question of fact as to whether the plaintiff suffered fractured ribs as a result of the accident (Lopez v Senatore, 65 NY2d 1017, 1019). Lawrence, J. P., Rubin, Balletta and Rosenblatt, JJ., concur.