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Schultz v. Von Voight

86 N.Y.2d 865 Court N.Y. Decision date 1995-10-26 English

Contents

Majority

p. 865
[658 NE2d 1040, 635 NYS2d 167]
Robert Schultz, Appellant, et al., Plaintiff, v Kathlyn Von Voight, Respondent.
Decided October 26, 1995
p. 866
APPEARANCES OF COUNSEL
Perry Gary Fish, Brooklyn for appellant.
Richard J. Inzerillo, Smithtown, and Dennis M. Brown for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Defendant presented sufficient evidence to demonstrate plaintiff did not sustain serious injury within the meaning of Insurance Law § 5102 (d) as a matter of law. Plaintiffs evidence proffered in opposition to defendant’s motion for summary judgment fails to establish a triable issue of fact concerning the permanency of the injuries alleged to constitute serious injury within the scope of Insurance Law § 5102 (d). Plaintiffs sole reliance upon allegations contained in his pleadings and bill of particulars to establish the permanent nature of his injuries is insufficient to defeat the prima facie showing made by defendant (see, Indig v Finkelstein, 23 NY2d 728 , 729).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.

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