CULLEN v. TREEN (2006)

Plaintiff commenced this action to recover damages for injuries he allegedly sustained when the bus that he was driving was rear-ended by a vehicle driven by defendant.   Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint.   Defendant met his initial burden on the motion by establishing through competent medical evidence that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) under the two categories of serious injury alleged by plaintiff, i.e., the permanent consequential limitation of use and significant limitation of use categories of serious injury, and plaintiff failed to raise an issue of fact (see Cook v. Franz, 309 A.D.2d 1234, 1234-1235, 765 N.Y.S.2d 537;  Winslow v. Callaghan, 306 A.D.2d 853, 854, 761 N.Y.S.2d 891).   The chiropractor's affidavit submitted by plaintiff in opposition to the motion was insufficient to raise an issue of fact because it was based solely on plaintiff's subjective complaints of pain (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197), and the affidavit otherwise failed to establish that plaintiff's limitation was “significant or consequential (i.e., important ․)” (id. at 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [internal quotation marks omitted];  cf. Cummings v. Riedy, 4 A.D.3d 811, 812-813, 771 N.Y.S.2d 629).   The additional medical reports submitted by plaintiff indicate that he had only a mild partial disability, which is insufficient to meet the serious injury threshold (see Gaddy v. Eyler, 79 N.Y.2d 955, 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  King v. Johnston, 211 A.D.2d 907, 621 N.Y.S.2d 402;  see generally Toure, 98 N.Y.2d at 350-351, 746 N.Y.S.2d 865, 774 N.E.2d 1197).

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: