Shaffer v. Kasperek

79 A.D.2d 1092, 435 N.Y.S.2d 835, 1981 N.Y. App. Div. LEXIS 10036

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1981
• Status: Published

Opinions

Judgment and order affirmed, without costs. Memorandum: In opposing the motion for summary judgment, plaintiffs failed to establish by admissible evidence the existence of a factual issue, i.e., any “ ‘Serious injury’ ” within the meaning of subdivision 4 of section 671 of the Insurance Law, requiring a trial, or to give an acceptable excuse for their failure to do so (Zuckerman v City of New York, 49 NY2d 557; Marine MidlandBank v Hall, 74 AD2d 729). Even had the moving papers been in evidentiary form, they were insufficient to raise a triable issue of fact (Simone v Streeben, 56 AD 2d 237). All concur, except Callahan, J., who dissents and votes to reverse and deny the motion, in the following memorandum.