Behm v. Radoccia

Appellate Division of the Supreme Court of New York

Behm v. Radoccia

6 A.D.3d 473, 775 N.Y.S.2d 356

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 12, 2004

StatusPublished

This text of 6 A.D.3d 473 (Behm v. Radoccia) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Behm v. Radoccia, 6 A.D.3d 473, 775 N.Y.S.2d 356 (N.Y. Ct. App. 2004).

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Opinion

[474]*474In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Werner, J.), dated April 2, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmation of the plaintiffs physician failed to adequately explain the two-year gap between the first examination shortly after the accident and the second examination after the defendant moved for summary judgment, and failed to describe what medical treatments, if any, the plaintiff received in the interim (see Jimenez v Kambli, 272 AD2d 581, 582 [2000]; Smith v Askew, 264 AD2d 834 [1999]). Moreover, the physician did not satisfactorily take into account the plaintiff’s medical history, which indicated preexisting herniated discs, and an automobile accident that occurred after the accident that forms the basis of this lawsuit. Under these circumstances, the plaintiff failed to raise a triable issue of fact.

Accordingly, the defendant was entitled to summary judgment dismissing the complaint. Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.

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[474]*474In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Werner, J.), dated April 2, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmation of the plaintiffs physician failed to adequately explain the two-year gap between the first examination shortly after the accident and the second examination after the defendant moved for summary judgment, and failed to describe what medical treatments, if any, the plaintiff received in the interim (see Jimenez v Kambli, 272 AD2d 581, 582 [2000]; Smith v Askew, 264 AD2d 834 [1999]). Moreover, the physician did not satisfactorily take into account the plaintiff’s medical history, which indicated preexisting herniated discs, and an automobile accident that occurred after the accident that forms the basis of this lawsuit. Under these circumstances, the plaintiff failed to raise a triable issue of fact.

Accordingly, the defendant was entitled to summary judgment dismissing the complaint. Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.

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Bluebook (online)

6 A.D.3d 473, 775 N.Y.S.2d 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/behm-v-radoccia-nyappdiv-2004.

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