Lopez v. Zangrillo

Appellate Division of the Supreme Court of New York

Lopez v. Zangrillo

251 A.D.2d 382, 674 N.Y.S.2d 107, 1998 N.Y. App. Div. LEXIS 6589

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 8, 1998

StatusPublished

Cited by1 cases

This text of 251 A.D.2d 382 (Lopez v. Zangrillo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lopez v. Zangrillo, 251 A.D.2d 382, 674 N.Y.S.2d 107, 1998 N.Y. App. Div. LEXIS 6589 (N.Y. Ct. App. 1998).

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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 May 27, 1997, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Once the defendants submitted evidence establishing that the injured plaintiff had not suffered a serious injury within the meaning of Insurance Law § 5102 (d), the burden shifted to the plaintiffs to produce evidentiary proof in admissible form demonstrating the existence of a triable issue of fact (see, Gaddy u Eyler, 79 NY2d 955). The affidavit of the injured plaintiff’s examining physician consisted of conclusory assertions founded only upon subjective complaints of pain, and was tailored to meet the statutory requirements (see, Lincoln v Johnson, 225 AD2d 593, 593-594; Donnelly v Kurlander, 220 AD2d 716, 717; Giannakis v Paschilidou, 212 AD2d 502, 503; [383]*383Antoniou v Duff, 204 AD2d 670). The physician’s affidavit is thus insufficient to raise a triable issue of fact. Similarly, the affidavit of the injured plaintiff consisted merely of subjective complaints of pain, and was also insufficient to raise a triable issue of fact (see, Lincoln v Johnson, supra; Barrett v Howland, 202 AD2d 383). O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.

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—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 May 27, 1997, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Once the defendants submitted evidence establishing that the injured plaintiff had not suffered a serious injury within the meaning of Insurance Law § 5102 (d), the burden shifted to the plaintiffs to produce evidentiary proof in admissible form demonstrating the existence of a triable issue of fact (see, Gaddy u Eyler, 79 NY2d 955). The affidavit of the injured plaintiff’s examining physician consisted of conclusory assertions founded only upon subjective complaints of pain, and was tailored to meet the statutory requirements (see, Lincoln v Johnson, 225 AD2d 593, 593-594; Donnelly v Kurlander, 220 AD2d 716, 717; Giannakis v Paschilidou, 212 AD2d 502, 503; [383]*383Antoniou v Duff, 204 AD2d 670). The physician’s affidavit is thus insufficient to raise a triable issue of fact. Similarly, the affidavit of the injured plaintiff consisted merely of subjective complaints of pain, and was also insufficient to raise a triable issue of fact (see, Lincoln v Johnson, supra; Barrett v Howland, 202 AD2d 383). O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.

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Bluebook (online)

251 A.D.2d 382, 674 N.Y.S.2d 107, 1998 N.Y. App. Div. LEXIS 6589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-zangrillo-nyappdiv-1998.

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