SALEM v. ROSENBERG

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

Steven SALEM, respondent, v. Arthur S. ROSENBERG, et al., appellants.

Decided: May 24, 1999

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ. Mark A. Longo, Brooklyn, N.Y. (Steven N. Feinman of counsel), for appellant Arthur S. Rosenberg. Norman Volk & Associates, P.C., New York, N.Y. (Michael I. Josephs of counsel), for appellants Tomtrans Taxi, Ltd., and Hector L. Santiago. Law Offices of David E. Zemsky, P.C., Hempstead, N.Y. (Steven Morgenlender of counsel), for respondent.

In an action to recover damages for personal injuries, (1) the defendant Arthur S. Rosenberg appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), entered May 14, 1998, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him, and (2) the defendants Tomtrans Taxi, Ltd. and Hector L. Santiago separately appeal, as limited by their brief, from so much of the order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, the motions for summary judgment are granted, and the complaint is dismissed in its entirety.

The medical report affirmed under penalties of perjury by Dr. Stephen Gilbert, a neurologist, which the defendant Arthur S. Rosenberg submitted in support of his motion for summary judgment, established prima facie that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

The affidavit of the plaintiff's chiropractor, Dr. Joseph Mills, which was submitted in opposition to the motions, indicated that the plaintiff sustained a 15% loss of use and limitation of his lumbosacral spine and a 14% loss of use and limitation of his cervical spine.   However, we find this affidavit to be insufficient to raise a triable issue of fact (see, CPLR 3212[b] ) as to whether the plaintiff sustained a serious injury because it consisted of merely “conclusory assertions tailored to meet statutory requirements” (Lopez v. Senatore, 65 N.Y.2d 1017, 1019, 494 N.Y.S.2d 101, 484 N.E.2d 130;  Marshall v. Albano, 182 A.D.2d 614, 582 N.Y.S.2d 220).

The balance of the evidence, consisting of the plaintiff's own deposition testimony, fails to show that the plaintiff suffered limitations of motion of his cervical and lumbosacral spines.

MEMORANDUM BY THE COURT.

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