WADI v. TEPEDINO

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Supreme Court, Appellate Division, Second Department, New York.

Ghaleb WADI, Respondent, v. Carmine TEPEDINO, Appellant.

Decided: August 18, 1997

Before MILLER, J.P., and THOMPSON, JOY and LUCIANO, JJ. Cheven & Keely, New York City (Thomas Torto, of counsel), for appellant. Werbel, Werbel & Strauss, Brooklyn (Shelly K. Werbel, of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated July 31, 1996, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the defendant's motion for summary judgment is granted, and the complaint is dismissed.

The defendant submitted proof in admissible form which established that the plaintiff had not suffered a serious injury within the meaning of Insurance Law § 5102(d).   The burden thus shifted to the plaintiff to demonstrate the existence of a triable issue of fact (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Gill v. O.N.S. Trucking, 239 A.D.2d 463, 657 N.Y.S.2d 452).   The plaintiff failed to meet this burden.

The affirmation of Dr. Jorge Rivero, which incorporated an unsworn and undated medical report, was insufficient to raise a triable issue of fact.   Dr. Rivero failed to cite any objective tests which he performed in reaching his conclusions (see, Gill v. O.N.S. Trucking, supra;  Lincoln v. Johnson, 225 A.D.2d 593, 639 N.Y.S.2d 124;  Giannakis v. Paschilidou, 212 A.D.2d 502, 622 N.Y.S.2d 112;  Georgia v. Ramautar, 180 A.D.2d 713, 579 N.Y.S.2d 743).   Moreover, Dr. Rivero last saw the plaintiff in March 1994, a few months after the accident and two years before the motion for summary judgment (see, Letellier v. Walker, 222 A.D.2d 658, 635 N.Y.S.2d 682;  Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102;  Phillips v. Costa, 160 A.D.2d 855, 554 N.Y.S.2d 288;  Covington v. Cinnirella, 146 A.D.2d 565, 536 N.Y.S.2d 514).   Dr. Rivero's conclusory use of the words “permanent” and “significant limitation” in describing the plaintiff's injuries were clearly tailored to meet the statutory requirements, and are therefore insufficient to establish a serious injury (see, Almonacid v. Meltzer, 222 A.D.2d 631, 635 N.Y.S.2d 690;  Gill v. O.N.S. Trucking, supra;  Lincoln v. Johnson, supra).   Under the circumstances, the defendant's motion for summary judgment dismissing the complaint should have been granted.

MEMORANDUM BY THE COURT.

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