Cullum v. Washington

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated [371] June 21, 1995, which granted the defendant’s motion for summary judgment dismissing the complaint for failure to establish the existence of a serious injury as defined in Insurance Law § 5102 (d). Ordered that the order is affirmed, with costs. The defendant submitted proof in admissible form which established that the infant plaintiff had not suffered a "serious injury” within the meaning of Insurance Law § 5102 (d). The burden thus shifted to the plaintiffs to demonstrate the existence of a triable issue of fact (see, Gaddy v Eyler, 79 NY2d 955). The plaintiffs failed to meet this burden. The medical evidence submitted by the plaintiffs in opposition to the defendant’s motion did not establish that the infant plaintiff sustained a permanent injury or a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180 day period immediately following the injury (see, Insurance Law § 5102 [d]). Moreover, the infant plaintiff’s self-serving and contradictory comments concerning her inability to perform her usual and customary daily activities for three months after the accident, without more, are insufficient to defeat a motion for summary judgment (see, Atamian v Mintz, 216 AD2d 430; Phillips v Costa, 160 AD2d 855). O’Brien, J. P., Ritter, Pizzuto and Altman, JJ., concur.