Allyn v. Hanley

2 A.D.3d 470, 767 N.Y.S.2d 885

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated March 4, 2003, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendant made out a prima facie case that the plaintiffs injuries were not serious based on the affirmed reports of his expert orthopedist and neurologist, who examined the plaintiff and concluded that there was no disability (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).

The medical evidence submitted by the plaintiff in opposition to the motion failed to raise a triable issue of fact. Notably, the plaintiffs medical expert failed to adequately explain the 5½-year-gap between the time of the plaintiffs medical treatment and the physical examination conducted by her medical expert (see Grossman v Wright, 268 AD2d 79, 84 [2000]). Furthermore, the plaintiff’s medical expert failed to indicate an awareness that the plaintiff was involved in at least four accidents subsequent to the subject motor vehicle accident. Therefore, any finding on his part that the plaintiffs current injuries were causally related to the subject accident was mere speculation (see Ginty v MacNamara, 300 AD2d 624, 625 [2002]). Altman, J.P., S. Miller, McGinity, Adams and Mastro, JJ., concur.