Savattere v. Barnathan

Appellate Division of the Supreme Court of New York

Savattere v. Barnathan

280 A.D.2d 537, 720 N.Y.S.2d 386, 2001 N.Y. App. Div. LEXIS 1969

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

DecidedFebruary 13, 2001

StatusPublished

Cited by2 cases

This text of 280 A.D.2d 537 (Savattere v. Barnathan) 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

Savattere v. Barnathan, 280 A.D.2d 537, 720 N.Y.S.2d 386, 2001 N.Y. App. Div. LEXIS 1969 (N.Y. Ct. App. 2001).

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Opinion

—In an action to recover damages for personal injury, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated January 31, 2000, as granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint on the ground that the plaintiff Nancy Savattere did not sustain a medically-determined injury which prevented her from performing substantially all of the material acts constituting her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident, and denied that branch of their cross motion for summary judgment on that issue.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant met her initial burden of demonstrating that the plaintiff Nancy Savattere did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). It was, therefore, incumbent upon the plaintiffs to come forward with sufficient evidence to create an issue of fact as to whether the injured plaintiff sustained a medically-determined injury which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiffs failed to do so.

The affirmation of the injured plaintiff’s treating physician was tailored to meet statutory requirements, and, as such, was insufficient to raise a triable issue of fact (see, Grossman v Wright, 268 AD2d 79; Powell v Hurdle, 214 AD2d 720). Moreover, the injured plaintiffs subjective complaints of pain and disability were insufficient to raise a genuine issue of fact in this matter (see, Kauderer v Penta, 261 AD2d 365). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.

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—In an action to recover damages for personal injury, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated January 31, 2000, as granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint on the ground that the plaintiff Nancy Savattere did not sustain a medically-determined injury which prevented her from performing substantially all of the material acts constituting her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident, and denied that branch of their cross motion for summary judgment on that issue.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant met her initial burden of demonstrating that the plaintiff Nancy Savattere did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). It was, therefore, incumbent upon the plaintiffs to come forward with sufficient evidence to create an issue of fact as to whether the injured plaintiff sustained a medically-determined injury which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiffs failed to do so.

The affirmation of the injured plaintiff’s treating physician was tailored to meet statutory requirements, and, as such, was insufficient to raise a triable issue of fact (see, Grossman v Wright, 268 AD2d 79; Powell v Hurdle, 214 AD2d 720). Moreover, the injured plaintiffs subjective complaints of pain and disability were insufficient to raise a genuine issue of fact in this matter (see, Kauderer v Penta, 261 AD2d 365). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.

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Bluebook (online)

280 A.D.2d 537, 720 N.Y.S.2d 386, 2001 N.Y. App. Div. LEXIS 1969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/savattere-v-barnathan-nyappdiv-2001.

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