Barbeito v. Kesev Taxi, Inc.

Appellate Division of the Supreme Court of New York

Barbeito v. Kesev Taxi, Inc.

281 A.D.2d 379, 721 N.Y.S.2d 279, 2001 N.Y. App. Div. LEXIS 2050

Appellate Division of the Supreme Court of the State of New York·Decided March 5, 2001·Published·Cited by 7 cases

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Arniotes, J.), dated February 17, 2000, which denied their 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).

[380]*380Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants established prima facie that the plaintiff’s injuries were not serious through the affirmed report of a neurologist who examined the plaintiff and concluded that he “does not demonstrate an objective neurological disability * * * which is causally related to the accident of September 28, 1996” (see, Gaddy v Eyler, 79 NY2d 955, 956-957).

To establish that he sustained a “significant limitation of use of a body function or system,” as alleged, the plaintiff was required to provide objective evidence of the extent or degree of the limitation and its duration (Insurance Law § 5102 [d]; see, Beckett v Conte, 176 AD2d 774). The affidavit of the plaintiff’s treating chiropractor failed to establish the duration of the alleged limitation, and thus, the plaintiff’s medical evidence failed to raise a triable issue of fact (see, CPLR 3212 [b]). Accordingly, the defendants’ motion for summary judgment should have been granted.

The plaintiff’s remaining contention is without merit. Santucci, J. P., Altman, Luciano and H. Miller, JJ., concur.

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—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Arniotes, J.), dated February 17, 2000, which denied their 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).

[380]*380Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants established prima facie that the plaintiff’s injuries were not serious through the affirmed report of a neurologist who examined the plaintiff and concluded that he “does not demonstrate an objective neurological disability * * * which is causally related to the accident of September 28, 1996” (see, Gaddy v Eyler, 79 NY2d 955, 956-957).

To establish that he sustained a “significant limitation of use of a body function or system,” as alleged, the plaintiff was required to provide objective evidence of the extent or degree of the limitation and its duration (Insurance Law § 5102 [d]; see, Beckett v Conte, 176 AD2d 774). The affidavit of the plaintiff’s treating chiropractor failed to establish the duration of the alleged limitation, and thus, the plaintiff’s medical evidence failed to raise a triable issue of fact (see, CPLR 3212 [b]). Accordingly, the defendants’ motion for summary judgment should have been granted.

The plaintiff’s remaining contention is without merit. Santucci, J. P., Altman, Luciano and H. Miller, JJ., concur.

Barbeito v. Kesev Taxi, Inc., 281 A.D.2d 379, 721 N.Y.S.2d 279, 2001 N.Y. App. Div. LEXIS 2050 (N.Y. Ct. App. 2001).

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281 A.D.2d 379 (Barbeito v. Kesev Taxi, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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