Summary
holding that where a plaintiff returned to work eight days after her injury, and had no other absences due to the injury, the burden shifted to the plaintiff to demonstrate a triable issue of fact
Summary of this case from Yanez v. City of New YorkOpinion
January 22, 1996
Appeal from the Supreme Court, Kings County (Vinik, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the defendant Pina C. Delgenio, and the action against the remaining defendants is severed.
In support of his motion, the appellant submitted affirmations and medical reports prepared by Dr. Michael V. Marrone and Dr. Harold E. Berson and excerpts of the deposition testimony of the injured plaintiff, Veronica Attanasio, which indicate that she returned to work eight days after the accident that caused her injuries and that she was not thereafter absent from work as a result of being disabled by her injuries. This evidence establishes a prima facie case that Ms. Attanasio did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) and shifted the burden to the plaintiffs to offer sufficient proof to demonstrate the existence of a triable issue of fact (see, Winkler v Lombardi, 205 A.D.2d 757).
While the plaintiffs submitted affidavits of two doctors that characterized Ms. Attanasio's alleged disability as permanent, those affidavits were based on examinations that had been conducted approximately four and six years, respectively, prior to the appellant's motion. Additionally, the findings of permanency contained in those reports were merely conclusory in nature. Thus, they were without evidentiary value and insufficient to raise a triable issue of fact (see, McHattie v Antieri, 190 A.D.2d 780; O'Neill v Rogers, 163 A.D.2d 466; Covington v Cinnirella, 146 A.D.2d 565). Thompson, J.P., Sullivan, Krausman and Florio, JJ., concur.