Zargary v. Finisia Enterprises

205 A.D.2d 683, 613 N.Y.S.2d 639, 1994 N.Y. App. Div. LEXIS 6474

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 20, 1994
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Kings County (Golden, J.) dated October 15, 1992, as denied their respective motions for summary judgment dismissing the complaint insofar as it is asserted against each of them.

Ordered that the order is reversed insofar as appealed from, on the law, the motions are granted, and the complaint is dismissed; and it is further,

Ordered that the appellants appearing separately and filing separate briefs are awarded one bill of costs.

The defendants made a prima facie showing that the plaintiff did not sustain serious injuries by presenting evidence demonstrating that she returned to work on a full-time basis nine days after the accident and that apart from an emergency room visit immediately following the accident, she did not seek treatment for the alleged injuries for more than one year (see, Pagano v Kingsbury, 182 AD2d 268). The report prepared by the plaintiff’s treating physician, Dr. Batash, which was also submitted in support of the motion for summary judgment, was insufficient to establish that the plaintiff had sustained a serious injury because it consisted of merely "conclusory assertions tailored to meet statutory requirements” (Lopez v Senatore, 65 NY2d 1017, 1019; see, Marshall v Albano, 182 AD2d 614).

Because the plaintiff failed to oppose the motion with any medical evidence in admissible form, the motions for summary judgment dismissing the complaint should have been granted (see, Pagano v Kingsbury, supra). Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.