Fallon v. Landwirt

• Decision Date: 10 May 1999
• Citation: 687 N.Y.S.2d 298
• Parties: 1999 N.Y. Slip Op. 4415 Anne FALLON, et al., appellants, v. Hava LANDWIRT, et al., defendants third-party plaintiffs-respondents; Philip J. Fallon, etc., third-party defendant-respondent.
• Court: New York Supreme Court — Appellate Division

Page 298

687 N.Y.S.2d 298

1999 N.Y. Slip Op. 4415

Anne FALLON, et al., appellants, v. Hava LANDWIRT, et al., defendants third-party plaintiffs-respondents; Philip J. Fallon, etc., third-party defendant-respondent.

Supreme Court of New York, Appellate Division, Second Department.

May 10, 1999.

James J. Killerlane (David Samuel, New York, N.Y., of counsel), for appellants.

Colligan & Hickey, Purchase, N.Y. (Patrick Colligan of counsel), for defendants third-party plaintiffs-respondents.

MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Mary E. Marzolla and Alysoun J. Sherwood of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Weiner, J.), dated May 19, 1998, which granted the separate motions of the defendants third-party plaintiffs and the third-party defendant for summary judgment dismissing the complaint on the ground that the plaintiff Anne Fallon did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The medical evidence submitted by the defendants in support of their motions for summary judgment made out a prima facie case that the plaintiff Anne Fallon did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The only competent medical evidence which the plaintiffs submitted in opposition to the motion, the affidavit sworn to on February 26, 1998, by Dr. Michael I. Weintraub, failed to causally relate the injuries to the accident (see, Verrelli v. Tronolone, 230 A.D.2d 789, 646 N.Y.S.2d 542).

S. MILLER, J.P., SULLIVAN, FRIEDMANN, LUCIANO and FEUERSTEIN, JJ., concur.