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Miller v. Donohue

Appellate Division of the Supreme Court of New York, Second Department
May 26, 1998
250 A.D.2d 825 (N.Y. App. Div. 1998)

Opinion

May 26, 1998

Appeal from the Supreme Court, Suffolk County (Kitson, J.)


Ordered that the order is affirmed, with costs to the respondent Joseph V. Donohue.

Once the defendants submitted evidence establishing that the plaintiff did not suffer a: serious injury within the meaning of Insurance Law § 5102 (d), the burden shifted to the plaintiff to produce evidentiary proof in admissible form demonstrating the existence of a triable issue of fact (see, Gaddy v. Eyler, 79 N.Y.2d 955). The affidavit of the plaintiff's examining physician, Dr. Howard M. Baruch, did not provide sufficient detail concerning the nature of the plaintiff's prior medical treatment or any explanation for the almost five-year gap between the plaintiff's: treatment in April 1992 by Dr. James A. Charles, and her subsequent visit to the examining physician in January 1997 and was, thus, insufficient to raise a triable issue of fact ( see, Medina v. Zalmen Reis Assocs., 239 A.D.2d 394; Verrelli v. Tronolone, 230 A.D.2d 789; Komar v. Showers, 227 A.D.2d 135; Morales v. Luna, 205 A.D.2d 673). Similarly, the plaintiff's affidavit, which contradicted her bill of particulars, consisted of merely "conclusory assertions tailored to meet statutory requirements" ( Lopez v. Senatore, 65 N.Y.2d 1017, 1019) and was also insufficient to raise a triable issue of fact.

Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.


Summaries of

Miller v. Donohue

Appellate Division of the Supreme Court of New York, Second Department
May 26, 1998
250 A.D.2d 825 (N.Y. App. Div. 1998)
Case details for

Miller v. Donohue

Case Details

Full title:RANDI MILLER, Appellant, v. JOSEPH V. DONOHUE et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 26, 1998

Citations

250 A.D.2d 825 (N.Y. App. Div. 1998)
671 N.Y.S.2d 1016

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