Burnett v. Miller

255 A.D.2d 541, 680 N.Y.S.2d 866, 1998 N.Y. App. Div. LEXIS 12882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (DiNoto, J.), dated February 13, 1998, which denied his motion for summary judgment dismissing the complaint based on the plaintiffs failure to 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 affirmed report of an orthopedist, Dr. Isaac Cohen, which the defendant submitted in support of his motion, made out a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

The plaintiffs unsubstantiated responses at her deposition concerning the amount of time she had missed from her employment as a result of the accident were insufficient to defeat the motion for summary judgment (see, Caruso v Rotondi, 248 AD2d 425; Beckett v Conte, 176 AD2d 774).

In order to establish that the plaintiff had suffered a “significant limitation of use of a body function or system” (Insurance Law § 5102 [d]), she was required to provide objective evidence of the extent or degree of the limitation and its duration (see, Beckett v Conte, supra). The affidavit submitted by the plaintiffs chiropractor in opposition to the defendant’s motion appears to have been based on examinations of the plaintiff which were performed no less than 34 months earlier. Thus, there was insufficient proof of the duration of the alleged impairment. Miller, J. P., Thompson, Pizzuto, McGinity and Luciano, JJ., concur.