Branca v. Story

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated January 14, 1997, which denied his motion for summary judgment dismissing the complaint. 480 Ordered that the order is reversed, on the law, with costs, the defendant’s motion is granted, and the complaint is dismissed. The defendant submitted proof in admissible form which established that the plaintiff had not suffered a “serious injury” within the meaning of Insurance Law § 5102 (d). The burden thus shifted to the plaintiff to demonstrate the existence of a triable issue of fact (e.g., McHaffie v Antieri, 190 AD2d 780; see also, Grasso v Angerami, 79 NY2d 813). The plaintiff failed to meet this burden. The affidavit submitted by the plaintiff’s treating chiropractor referred to soft tissue injury and was conclusory in describing the duration of her injury (see, Scheer v Koubek, 70 NY2d 678; Gaddy v Eyler, 79 NY2d 955; Licari v Elliott, 57 NY2d 230; Matter of American Home Assur. Co. v Montilus, 234 AD2d 543; Duvivier v Bruso, 221 AD2d 411; Orr v Miner, 220 AD2d 567). Under the circumstances, the defendant’s motion for summary judgment dismissing the complaint should have been granted. Rosenblatt, J. P., O’Brien, Thompson, Friedmann and Goldstein, JJ., concur.