| Lauffer v Macey |
| 2010 NY Slip Op 05142 [74 AD3d 1826] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Alysia J. Lauffer et al., Respondents, v Jennifer L. Macey et al.,Appellants. |
—[*1]
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered May15, 2009 in a personal injury action. The order, insofar as appealed from, denied in part themotion of defendants for summary judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is granted in its entirety and the complaint is dismissed.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedlysustained by Alysia J. Lauffer (plaintiff) when the motor vehicle she was operating wasrear-ended by a vehicle owned by defendant Patricia A. Macey and operated by defendantJennifer L. Macey. Defendants moved for summary judgment dismissing the complaint on theground that plaintiff did not sustain a serious injury under the four categories alleged in thecomplaint, as amplified by the bill of particulars, i.e., permanent loss of use, permanentconsequential limitation of use, significant limitation of use, and 90/180-day categories. Weconclude that Supreme Court erred in granting the motion only insofar as plaintiffs alleged thatplaintiff sustained a serious injury under the permanent loss of use category and that the courtshould have granted the motion in its entirety. Defendants met their initial burden on the motionby submitting an affirmed report of a physician who examined plaintiff at their request andconcluded that there was no objective evidence that plaintiff sustained a serious injury as a resultof the accident (see e.g. McConnell vFreeman, 52 AD3d 1190, 1191 [2008]; Lux v Jakson, 52 AD3d 1253 [2008]; see generally Toure vAvis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Weaver v Town of Penfield, 68 AD3d 1782, 1784 [2009]). Thecertified medical records of one of plaintiff's treating physicians submitted by plaintiffs inopposition to the motion were insufficient to raise a triable issue of fact (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]). None of the findings of thatphysician is based on objective evidence of an injury (see e.g. Beaton v Jones, 50 AD3d 1500, 1502 [2008]; Calucci vBaker, 299 AD2d 897 [2002]), and, in any event, to the extent that the physician concludedthat plaintiff's symptoms were caused by the accident, that conclusion is speculative andconclusory (see [*2]e.g. Alloway v Rodriguez, 61 AD3d 591 [2009]; Innocent v Mensah, 56 AD3d 379[2008]). Present—Smith, J.P., Fahey, Carni, Green and Gorski, JJ.