Ali v. Korostelev

35 A.D.3d 295, 828 N.Y.S.2d 9

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February 6, 2006, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff alleged that as a result of a car accident on July 23, 2001, he suffered a “serious injury” under Insurance Law § 5102 (d). He sought recovery under the statute based on: (1) “permanent loss of use of a body organ, member, function or system”; (2) “permanent consequential limitation of use of a body organ or member”; (3) “significant limitation of use of a body function or system”; and (4) a “medically determined injury or impairment of a non-permanent nature which prevented him] from performing substantially all of [his] usual and customary daily activities for not less than ninety days during the one hundred eighty days” immediately following the accident.

However, the medical affirmations submitted in support of defendants’ motion for summary judgment were sufficient to sustain defendants’ burden of establishing that plaintiff had not met the “serious injury” threshold {see Insurance Law § 5102 [d]). Plaintiff then submitted an affirmation from his treating physician, an affirmation from a radiologist, hospital records, a sworn MRI report, and his own affidavit. However, these documents, viewed individually and collectively, failed to demonstrate that the nature or severity of the shoulder and spinal injuries sustained by plaintiff met the serious injury threshold. Accordingly, we dismiss the complaint. Concur—Mazzarelli, J.P, Friedman, Sullivan, Williams and Gonzalez, JJ.