CPLR R. 3212 Motion for summary judgment
Ghany v Hossain, 2009 NY Slip Op 06116 (App. Div., 2nd, 2009)
On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557). Here, the defendants satisfied their burden and, in opposition, the plaintiff failed to raise a triable issue of fact (see Grob v Kings Realty Assoc., 4 AD3d 394, 395). In opposition to the motion, the plaintiff submitted, inter alia, the affidavit of an expert witness, who opined, in pertinent part, that the condition of the subject stairs and the upper portion of the handrail were substantial factors in causing the decedent's injuries. Even if the stairway and handrail were defective, as the expert opined, the Supreme Court properly determined that his conclusion linking the alleged defects to the decedent's fall was purely speculative (see Grob v Kings Realty Assoc., 4 AD3d at 395). Accordingly, the Supreme Court properly awarded the [*2]defendants summary judgment dismissing the complaint.
Ismail v Tejeda, 2009 NY Slip Op 06118 (App. Div., 2nd, 2009).
The defendants did not meet their prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955). The plaintiff clearly alleged in his bill of particulars that he had sustained, inter alia, a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts constituting his usual and customary activities for not less than 90 days during the 180 days immediately following the accident. However, the affirmed report of the defendants' examining physician did not specifically relate any of his findings to the 90/180 day category of serious injury for the relevant time period following the accident, and the defendants did not submit any other evidence to refute the plaintiff's claim (see Neuburger v [*2]Sidoruk, 60 AD3d 650; Miller v Bah, 58 AD3d 815; Scinto v Hoyte, 57 AD3d 646). Since the defendants failed to meet their prima facie burden with respect to the 90/180 day category of a serious injury, it is unnecessary to examine the sufficiency of the plaintiff's opposition papers in this regard (see Neuburger v Sidoruk, 60 AD3d at 652; Miller v Bah, 58 AD3d at 816; Scinto v Hoyte, 57 AD3d at 647).
Far too often, counsel and judges alike ignore this important concept: An expert's affidavit (or affirmation), even if unrebutted, if conclusory or insufficient, will not carry the party offering the affidavit.
The bold is mine.
