Lopez v. Senators
Lopez v. Senators
Opinion of the Court
OPINION OF THE COURT
Memorandum.
The judgment insofar as appealed from and order of the Appellate Division insofar as brought up for review should be reversed, with costs, and the order of Supreme Court, Kings County, insofar as it denied both parties summary judgment on the first cause of action reinstated.
In this action to recover damages for personal injuries sustained when defendants’ car backed into plaintiff’s parked car, defendants sought summary judgment on the ground that there was no “serious injury” within the meaning of Insurance Law § 671 (4) (now § 5102 [d]). Plaintiff offered the affidavit of his
Special Term denied summary judgment to both parties, finding that the conflicting medical opinions presented triable issues, but the Appellate Division reversed, holding that “the conclusory allegations contained in the affidavit of plaintiff’s physician as to the permanency of plaintiff’s injuries are, without more, insufficient as a matter of law to establish a prima facie case of ‘serious injury’ ”. (97 AD2d, at p 788.)
We agree with the Appellate Division that mere repetition of the word “permanent” in the affidavit of a treating physician is insufficient to establish “serious injury,” and that summary judgment should be granted for defendant where the plaintiff’s evidence is limited to conclusory assertions tailored to meet statutory requirements. While in general summary judgment can neither be awarded nor defeated on the basis of conclusory
Here the affidavit of plaintiff’s treating physician, in addition to assertions of “permanent” injury found insufficient by the Appellate Division, purports to describe another of the eight specific categories which may constitute serious injury: a “significant limitation of use of a body function or system”. (Insurance Law § 5102 [d].) Where the treating physician, in an affidavit supported by exhibits, has set forth the injuries and course of treatment, identified a limitation of movement of the neck of only 10 degrees to the right or left, and on that predicate expressed the opinion that there was a significant limitation of use of a described body function or system, such evidence was sufficient for the denial of summary judgment to defendants. The medical reports and deposition testimony submitted by defendants at best gave rise to questions of credibility, precluding summary judgment for plaintiff.
Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment insofar as appealed from and order of the Appellate Division insofar as brought up for review reversed, etc.
Reference
- Full Case Name
- Augustin Lopez v. Mark Senators
- Status
- Published