Opinion
11-15-2016
Scarlet DIAZ, an Infant by Her Father and Natural Guardian, Rene Diaz, et al., Plaintiffs–Appellants, v. Yaw BARIMAH, et al., Defendants–Respondents.
Goidel & Siegel, LLP, New York (Andrew B. Siegel of counsel), for appellants. Maroney O'Connor LLP, New York (Ross T. Herman of counsel), for respondents.
Goidel & Siegel, LLP, New York (Andrew B. Siegel of counsel), for appellants.
Maroney O'Connor LLP, New York (Ross T. Herman of counsel), for respondents.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered May 18, 2015, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the claims of serious psychological injury and a 90/180–day injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants established prima facie that the infant plaintiff did not suffer a serious psychological injury as a result of the accident in which she was struck by defendants' vehicle, through an affidavit by a psychologist who examined her and found no objective symptoms of posttraumatic stress disorder or any other psychological illness (see Hill v. Cash, 117 A.D.3d 1423, 1425–1426, 985 N.Y.S.2d 345 [4th Dept.2014] ; Krivit v. Pitula, 79 A.D.3d 1432, 1434, 912 N.Y.S.2d 789 [3d Dept.2010] ).
In opposition, plaintiffs failed to raise an issue of fact (see Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 993 N.Y.S.2d 1 [1st Dept.2014], affd. 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2015] ). Their expert did not consider or address the evidence in the infant plaintiff's own medical records suggesting that her psychological symptoms were causally related to her parents' ongoing divorce and custody dispute, and thus her opinion that the accident caused the psychological injuries is impermissibly conclusory (see id. ).
Defendants also established prima facie that the infant plaintiff did not suffer a 90/180–day injury, through her own testimony that she missed only one day of school and the absence of any evidence of a “medically determined” injury, in opposition to which plaintiffs failed to raise an issue of fact (see Melo v. Grullon, 101 A.D.3d 452, 453, 955 N.Y.S.2d 581 [1st Dept.2012] ).
MAZZARELLI, J.P., ANDRIAS, SAXE, FEINMAN, GISCHE, JJ., concur.