Summary
In Malloy, the appellate court affirmed a lower court's grant of summary judgment because the plaintiff had failed to show that she was disabled for the requisite period of time, and alleged only her subjective assessment as to the pain and extent of disability.
Summary of this case from Barney v. U.S.Opinion
May 4, 1992
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Ordered that the order is affirmed, with costs.
In support of their motions for summary judgment, the defendants submitted the pleadings and a portion of the examination before trial of the plaintiff Margaret Malloy. In opposition, Margaret Malloy offered her own affidavit and a physician's report. Margaret Malloy's examination before trial indicated that approximately four weeks after the accident she returned to both work and her duties as a member of the local volunteer ambulance crew.
On these facts the court properly granted the defendants' motions for summary judgment. By her own admission, Margaret Malloy was not disabled for a period of 90 during the 180 days immediately following the occurrence of the injury (see, Insurance Law § 5102 [d]). In addition, Margaret Malloy's affidavit of subjective pain was insufficient to raise a triable issue of fact (Zoldas v. Louise Cab Corp., 108 A.D.2d 378, 381). Under these circumstances, Margaret Malloy failed, as a matter of law, to establish that she sustained a serious injury within the meaning of the statute (Insurance Law § 5102 [d]; DeFilippo v White, 101 A.D.2d 801; Hezekiah v. Williams, 81 A.D.2d 261). Sullivan, J.P., Lawrence, Ritter and Santucci, JJ., concur.