Opinion
June 4, 1985
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Dillon, P.J., Callahan, Boomer, Green and Schnepp, JJ.
Order unanimously reversed, on the law, without costs, and motion granted. Memorandum: Defendant's motion for summary judgment based on her claim that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d) was erroneously denied by Special Term. Defendant submitted an affidavit of an orthopedic surgeon, together with copies of reports of two examinations which he conducted of plaintiff. They demonstrated that although plaintiff had suffered a soft tissue injury resulting in a temporary partial disability, she was not prevented from performing all of the material acts constituting her usual and customary daily activities for a period of 90 days or more, and thus did not suffer a "serious injury" within the meaning of section 5102 (d). In response to the motion, plaintiff submitted only the conclusory affidavit of her attorney.
In opposing a motion for summary judgment "evidentiary proof in admissible form" demonstrating the existence of a factual issue sufficient to require a trial of the action must be produced and "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Since plaintiff failed to submit competent medical proof in admissible form to oppose the medical proof submitted by defendant, she failed to create a question of fact requiring determination by a jury (see, Ferguson v Temmons, 79 A.D.2d 1090).