Muratore v. Tierney

229 A.D.2d 1018, 645 N.Y.S.2d 178, 1996 N.Y. App. Div. LEXIS 9088

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1996
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants’ motion for partial summary judgment dismissing the causes of action on behalf of Sandra Muratore and Gabrielle Wilson (plaintiffs). In support of their motion, defendants submitted an affidavit of the orthopedic surgeon retained by them to conduct an independent examination of plaintiffs and to review plaintiffs’ medical records and the reports of the treating physician; he opined therein that there is no objective evidence that plaintiffs sustained a serious injury. Defendants thereby met their initial burden of establishing a prima facie case that plaintiffs did not sustain a "serious injury” within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955).

"The burden then shifted to plaintiffs] to come forward with sufficient evidence to overcome defendant^’] motion by demonstrating that [they] sustained a serious injury within the meaning of the No-Fault Insurance Law” (Gaddy v Eyler, supra, at 957; see, Licari v Elliott, 57 NY2d 230, 235). Plaintiffs’ proffered evidence, however, fails to demonstrate either a "permanent loss of use of a body * * * function or system” or a "significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). The affidavit of plaintiffs’ treating physician, which merely repeats plaintiffs’ subjective complaints of pain and consists of "conclusory assertions tailored to meet the statutory requirements[,] * * * is insufficient to establish 'serious injury’ ” (Gaddy v Eyler, supra, at 958; see, Lopez v Senatore, 65 NY2d 1017, 1019). (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.—Summary Judgment.) Present—Lawton, J. P., Wesley, Doerr, Davis and Boehm, JJ.