Pierreville v. Brookins

239 A.D.2d 399, 658 N.Y.S.2d 341, 1997 N.Y. App. Div. LEXIS 5122

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1997
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated October 22,1996, which denied their motion for summary judgment dismissing the complaint and granted the plaintiff’s cross motion for partial summary judgment on the issue of liability.

Ordered that the order is reversed, on the law, with costs, the defendants’ motion for summary judgment is granted, the plaintiff’s cross motion is denied as academic, and the complaint is dismissed.

The plaintiff sought to recover damages for injuries he allegedly sustained when he was struck by an automobile owned and operated by the defendants. The defendants moved for summary judgment and submitted sufficient evidence to make a prima facie showing that the plaintiff did not suffer a serious injury as defined by Insurance Law § 5102 (d). The burden then shifted to the plaintiff to come forward with sufficient evidence that he sustained a serious injury (see, Gaddy v Eyler, 79 NY2d 955).

We conclude that the plaintiff failed to sustain his burden, as a recent sworn report submitted by his physician revealed only slight limitations of motion and contained conclusory statements tailored to meet statutory requirements (see, Gaddy v Eyler, supra; Licari v Elliott, 57 NY2d 230). Accordingly, the court erred in denying the defendants’ motion for summary judgment dismissing the complaint.

In view of our determination to dismiss the complaint because the plaintiff did not suffer serious injury, the plaintiff’s cross motion for partial summary judgment on the issue of liability is denied as academic. O’Brien, J. P., Copertino, Thompson and Krausman, JJ., concur.