Williams v. Toshiko

237 A.D.2d 350, 654 N.Y.S.2d 780, 1997 N.Y. App. Div. LEXIS 2361

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated August 12, 1996, which denied her motion for summary judgment dismissing the complaint and granted the plaintiffs’ cross motion for summary judgment in their favor on the issue of liability.

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

The evidence submitted by the defendant in support of her motion including, inter alia, the affirmation and report of her expert, Dr. Hugh Wisoff, made out a prima facie case that the injured plaintiff, Janice J. Williams, did not sustain a serious injury as defined by Insurance Law § 5102 (d). The injured plaintiff’s affidavit in opposition to the defendant’s motion and in support of the cross motion failed to raise a triable issue of fact as to whether she sustained a serious injury as defined in Insurance Law § 5102 (d). Notably, the injured plaintiff conceded that she was not precluded by her alleged injuries from performing any of her job duties as a school bus monitor. The statement by the injured plaintiff’s treating chiropractor in his affidavit, to the effect that the plaintiffs present limitations were permanent and consequential, was a conclusory assertion tailored to meet statutory requirements (see, Lopez v Senatore, 65 NY2d 1017, 1019). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.