William D. Cullen v Roger A. Treen

Cullen v Treen 2006 NY Slip Op 04663 [30 AD3d 1086] June 9, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 23, 2006

William D. Cullen, Jr., Appellant, v Roger A. Treen, Respondent.

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Appeal from an order and judgment (one paper) of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.), entered October 14, 2004 in a personal injury action. The order and judgment granted defendant's motion for summary judgment dismissing the complaint.

It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries he allegedly sustained when the bus that he was driving was rear-ended by a vehicle driven by defendant. Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. Defendant met his initial burden on the motion by establishing through competent medical evidence that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) under the two categories of serious injury alleged by plaintiff, i.e., the permanent consequential limitation of use and significant limitation of use categories of serious injury, and plaintiff failed to raise an issue of fact (see Cook v Franz, 309 AD2d 1234, 1234-1235 [2003]; Winslow v Callaghan, 306 AD2d 853, 854 [2003]). The chiropractor's affidavit submitted by plaintiff in opposition to the motion was insufficient to raise an issue of fact because it was based solely on plaintiff's subjective complaints of pain (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]), and the affidavit otherwise failed to establish that plaintiff's limitation was "significant or consequential (i.e., important . . . )" (id. at 353 [internal quotation marks omitted]; cf. Cummings v Riedy, 4 AD3d 811, 812-813 [2004]). The additional medical reports submitted by plaintiff indicate that he had only a mild partial disability, which is insufficient to meet the serious injury threshold (see Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Licari v Elliott, 57 NY2d 230, 236 [1982]; King v Johnston, 211 AD2d 907 [1995]; see generally Toure, 98 NY2d at 350-351). Present—Kehoe, J.P., Gorski, Martoche, Smith and Pine, JJ.