Gargiulo v. Stier

133 A.D.2d 441, 519 N.Y.S.2d 562, 1987 N.Y. App. Div. LEXIS 49914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1987
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Hurowitz, J.), dated July 11, 1986, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

As a result of an automobile accident, the plaintiff Marion Gargiulo, a housewife, allegedly suffered "soft tissue contusions” and aggravated a preexisting emotional condition associated with one who suffers from severe asthma. The medical evidence submitted by the defendants in support of their motion, including a medical report by the plaintiff Marion Gargiulo’s examining doctor, indicates that (1) any change in that plaintiff’s emotional condition did not continue after the first month after the accident and (2) the allegedly injured plaintiff did not suffer from any physical disability. In opposition to the defendants’ motion for summary judgment, the plaintiffs submitted only an affidavit of their counsel which was insufficient to demonstrate the existence of an issue of fact on the issue of whether the plaintiff Marion Gargiulo suffered a "serious injury” as defined in Insurance Law § 5102 (d) (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Accordingly, summary judgment should have been granted to the defendants (see, Popp v Kremer, 124 AD2d 720; Padron v Hood, 124 AD2d 718). Mollen, P. J., Mangano, Brown and Lawrence, JJ., concur.