Psomas v. Kehoe

253 A.D.2d 456, 675 N.Y.S.2d 322, 1998 N.Y. App. Div. LEXIS 8846

• 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, the defendants appeal from of an order of the Supreme Court, Nassau County (Lockman, J.), entered August 19, 1997, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) and granted the plaintiff’s cross motion for 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 for summary judgment is denied as academic, and the complaint is dismissed.

The defendants’ moving papers, which included, inter alia, an affidavit of an orthopedic surgeon, established that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955). The papers submitted by the plaintiff in opposition to the defendants’ motion for summary judgment, including a conclusory affidavit of the plaintiff’s chiropractor, were insufficient to raise a question of fact on this issue (see, Cacaccio v Martin, 235 AD2d 384).

In light of our determination, the plaintiffs cross motion for summary judgment on the issue of liability is denied as academic. Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.