Opinion
CA 02-01777
February 7, 2003.
Appeal from that part of an order of Supreme Court, Erie County (Howe, J.), entered August 30, 2001, that denied the motion of defendants Shannon M. Flanigan and Stephen A. Flanigan for summary judgment dismissing the complaint against them.
O'SHEA, REYNOLDS CUMMINGS, BUFFALO (JOHN J. COTTER, JR., OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
ROY CARLISI, BUFFALO, FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint against defendants Shannon M. Flanigan and Stephen A. Flanigan is dismissed.
Memorandum:
Plaintiff commenced this action seeking to recover damages from two sets of defendants for injuries allegedly sustained in two distinct incidents. As against Shannon M. Flanigan and Stephen A. Flanigan (defendants), plaintiff seeks damages for a serious injury allegedly sustained by him on September 4, 1996 when the vehicle that he was driving was struck by another driven by Shannon Flanigan and owned by Stephen Flanigan. Supreme Court erred in denying the motion of defendants for summary judgment dismissing the complaint against them. In support of their motion, defendants submitted plaintiff's medical records and the report and affidavit of the physician who performed an independent medical evaluation of plaintiff, thereby establishing the absence of any causal connection between plaintiff's alleged injuries and the motor vehicle accident. Defendants thus met their initial burden of establishing as a matter of law that plaintiff did not sustain a serious injury as a result of the motor vehicle accident (see Calucci v. Baker, 299 A.D.2d 897, 898 [Nov. 15, 2002]; Owen v. Rapid Disposal Serv., 291 A.D.2d 782; Howard v. Rogalski, 291 A.D.2d 909), and plaintiff failed to raise a triable issue of fact (see Calucci, 299 A.D.2d 898; Howard, 291 A.D.2d 909; Palivoda v. Sluberski, 275 A.D.2d 1036; Ray v. Ficchi, 178 A.D.2d 988, 989, lv dismissed in part and denied in part 80 N.Y.2d 958).