Schultz v. Von Voight

• Decision Date: 26 October 1995
• Parties: , 658 N.E.2d 1040 Robert SCHULTZ, Appellant, et al., Plaintiff, v. Kathlyn VON VOIGHT, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 167

635 N.Y.S.2d 167

86 N.Y.2d 865, 658 N.E.2d 1040

Robert SCHULTZ, Appellant, et al., Plaintiff, v. Kathlyn VON VOIGHT, Respondent.

Court of Appeals of New York.

Oct. 26, 1995.

[86 N.Y.2d 866] [658 N.E.2d 1041] Perry Gary Fish, Brooklyn, for appellant.

Richard J. Inzerillo, and Dennis M. Brown, Smithtown, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Defendant presented sufficient evidence to demonstrate plaintiff did not sustain serious injury within the meaning of Insurance Law § 5102(d) as a matter of law. Plaintiff's evidence proffered in opposition to defendant's motion for summary judgment fails to establish a triable issue of fact concerning the permanency of the injuries alleged to constitute serious injury within the scope of Insurance Law § 5102(d). Plaintiff's sole reliance upon allegations contained in his pleadings and bill of particulars to establish the permanent nature of his injuries is insufficient to defeat the prima facie showing made by defendant (see, Indig v. Finkelstein, 23 N.Y.2d 728, 729, 296 N.Y.S.2d 370, 244 N.E.2d 61).

KAYE, C.J., and SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK, JJ., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.