Cabreja v. Morris

Appellate Division of the Supreme Court of New York

Cabreja v. Morris

309 A.D.2d 536, 765 N.Y.S.2d 494, 2003 N.Y. App. Div. LEXIS 10361

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

DecidedOctober 7, 2003

StatusPublished

This text of 309 A.D.2d 536 (Cabreja v. Morris) 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

Cabreja v. Morris, 309 A.D.2d 536, 765 N.Y.S.2d 494, 2003 N.Y. App. Div. LEXIS 10361 (N.Y. Ct. App. 2003).

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Opinion

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered April 16, 2002, which, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d), unanimously affirmed, without costs.

In opposition to defendant’s prima facie showing of no serious injury, plaintiff submitted the report of his treating physician which, while denominated an affirmation, is neither affirmed (CPLR 2106) nor sworn to (see Merrill /New York Co. v Celerity Sys., 300 AD2d 206 [2002]), and thus failed to provide the requisite medical evidence of serious injury (see Grasso v Angerami, 79 NY2d 813 [1991]; Charlton v Almaraz, 278 AD2d 145 [2000]). In any event, the physical limitations described therein are neither supported by clinical findings of decreased range of motion (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]) nor shown to be causally related to the accident by the medical evidence of record submitted by plaintiff (see Chrisomalides v Ekow, 291 AD2d 202 [2002]). Concur— Saxe, J.P., Sullivan, Williams, Lerner and Friedman, JJ.

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Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered April 16, 2002, which, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d), unanimously affirmed, without costs.

In opposition to defendant’s prima facie showing of no serious injury, plaintiff submitted the report of his treating physician which, while denominated an affirmation, is neither affirmed (CPLR 2106) nor sworn to (see Merrill /New York Co. v Celerity Sys., 300 AD2d 206 [2002]), and thus failed to provide the requisite medical evidence of serious injury (see Grasso v Angerami, 79 NY2d 813 [1991]; Charlton v Almaraz, 278 AD2d 145 [2000]). In any event, the physical limitations described therein are neither supported by clinical findings of decreased range of motion (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]) nor shown to be causally related to the accident by the medical evidence of record submitted by plaintiff (see Chrisomalides v Ekow, 291 AD2d 202 [2002]). Concur— Saxe, J.P., Sullivan, Williams, Lerner and Friedman, JJ.

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Bluebook (online)

309 A.D.2d 536, 765 N.Y.S.2d 494, 2003 N.Y. App. Div. LEXIS 10361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cabreja-v-morris-nyappdiv-2003.

Opinion

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