Worley v. Griffith

273 A.D.2d 303, 709 N.Y.S.2d 846, 2000 N.Y. App. Div. LEXIS 6543

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Milano, J.), dated July 16, 1999, 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).

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The Supreme Court improperly denied the defendants’ motion for summary judgment dismissing the complaint. The defendants established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Grossman v Wright, 268 AD2d 79; Gaddy v Eyler, 79 NY2d 955; Flanagan v Hoeg, 212 AD2d 756), thereby shifting the burden to the plaintiff to raise a triable question of fact on that issue (see, Licari v Elliott, 57 NY2d 230). The plaintiff failed to meet this burden, as the physician’s affidavit he submitted in opposition to the motion consisted of nothing more than “conclusory assertions tailored to meet statutory requirements” (Lopez v Senatore, 65 NY2d 1017, 1019; see, Grossman v Wright, supra; Medina v Zalman Reis & Assocs., 239 AD2d 394; Marshall v Albano, 182 AD2d 614). Accordingly, the defendants’ motion should have been granted. Bracken, J. P., Joy, Thompson, Goldstein and Feuerstein, JJ., concur.