Tedesco v. Nowak

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. 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 plaintiffs 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 AD2d 897, 898; Owen v Rapid Disposal Serv., 291 AD2d 782; Howard v Rogalski, 291 AD2d 909), and plaintiff failed to raise a triable issue of fact (see Calucci, 299 AD2d at 898; Howard, 291 AD2d 909; Palivoda v Sluberski, 275 AD2d 1036; Ray v Ficchi, 178 AD2d 988, 989, lv dismissed in part and denied in part 80 NY2d 958). Present— Pine, J.P., Wisner, Kehoe, Burns and Gorski, JJ.