| Tubbs v Pallone |
| 2007 NY Slip Op 08164 [45 AD3d 959] |
| November 1, 2007 |
| Appellate Division, Third Department |
| Sharon Tubbs, Appellant, v Craig M. Pallone,Respondent. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Vestal (Maria E. Lisi-Murray of counsel), forrespondent.
Rose, J. Appeal from an order and judgment of the Supreme Court (Mulvey, J.), enteredMarch 14, 2007 in Chemung County, which granted defendant's motion for summary judgmentdismissing the complaint.
On June 23, 2004, plaintiff's bicycle and defendant's pickup truck collided and plaintiffsustained injuries to her left leg, knee, elbow, hand and wrist. Plaintiff commenced this action,contending that she had suffered a serious injury within the meaning of Insurance Law §5102 (d) in that she had sustained a permanent loss of use of a body organ, member, function orsystem; a consequential limitation of use of a body organ, member, function or system; and/or asignificant loss of use of a body function or system with regard to her left wrist. Defendantmoved for summary judgment dismissing the complaint, proffering the report of a consultingphysician who concluded that there was no objective medical evidence of impairment of functionin plaintiff's left wrist as a result of this accident. In doing so, he made reference to records of aJune 15, 2004 emergency room visit by plaintiff for left wrist tendonitis, eight days prior to theaccident. In response, plaintiff submitted the affidavit of her attorney with exhibits includingexcerpts from the transcript of her deposition, a copy of the unsworn office notes of her treatingphysician for a [*2]visit on July 1, 2004, and a photograph of herleft arm which displayed a surgical scar.[FN*]Supreme Court granted defendant's motion and dismissed the complaint. Plaintiff appeals.
On a motion for summary judgment in a no-fault action, a defendant bears the initial burdenof demonstrating that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) (seeBaker v Thorpe, 43 AD3d 535, 536 [2007]). The burden then shifts to the plaintiff topresent competent medical proof to raise a triable issue of fact (see Tuna v Babendererde, 32 AD3d574, 576-577 [2006]; John vEngel, 2 AD3d 1027, 1028 [2003]).
Here, defendant tendered sufficient admissible proof, in the form of the affirmation of theconsulting physician who examined plaintiff and reviewed her medical records, to make a primafacie showing that plaintiff had not suffered a serious injury within any of the categories ofInsurance Law § 5102. The burden them shifted to plaintiff to offer proof in admissibleform to create a material question of fact (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]). Althoughplaintiff's attorney asserted that plaintiff had undergone "four serious operations" which left herwith a permanent defect, he failed to support this claim with any medical evidence whatsoever.Therefore, plaintiff did not meet her burden of proof and, consequently, defendant was entitled tosummary judgment dismissing the complaint (see Parks v Miclette, 41 AD3d 1107, 1110-1111 [2007]; Maye v Stearns, 19 AD3d 902,903 [2005]).
Cardona, P.J., Mercure, Crew III and Mugglin, JJ., concur. Ordered that the order andjudgment is affirmed, with costs.
Footnote *: While plaintiff contends that shebears a disfiguring scar, we note that she raised no claim of significant disfigurement or scarringin her complaint or bill of particulars.