Kaplan v. Cartusciello

253 A.D.2d 452, 675 N.Y.S.2d 314, 1998 N.Y. App. Div. LEXIS 8848

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 1998
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Garson, J.), dated July 9, 1997, which denied their motion for summary judgment dismissing the complaint and transferred the action to the Civil Court pursuant to CPLR 325 (d).

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

The defendants moved for summary judgment, contending that Stanley Kaplan, the injured plaintiff, did not suffer a “serious injury” within the meaning of Insurance Law § 5102 (d). The defendants established, prima facie, that Kaplan’s injuries were not serious (see, Gaddy v Eyler, 79 NY2d 955).

The plaintiffs’ papers submitted in opposition to the motion failed to raise a question of fact as to the issue of serious injury. The affirmation of Kaplan’s examining physician was deficient in several respects and therefore insufficient to raise a triable issue of fact as to whether Kaplan suffered a serious injury. In addition to the physician’s failure to support her conclusions with any objective proof (see, Merisca v Alford, 243 AD2d 613; Antoniou v Duff, 204 AD2d 670; Barrett v Howland, 202 AD2d 383), the affirmation failed to demonstrate that the accident was a proximate cause of the claimed spinal injuries (see, Khodadadian v Wolff, 242 AD2d 681; Cacaccio v Martin, 235 AD2d 384; Waaland v Weiss, 228 AD2d 435; Lichtman-Williams v Desmond, 202 AD2d 646). Accordingly, the motion for summary judgment is granted. Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.