Campbell v. Wendt

2017 NY Slip Op 5510, 152 A.D.3d 413, 54 N.Y.S.3d 855

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 2017
• Docket: 4411 157639/12
• Status: Published

Opinion

Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered on or about May 18, 2016, which, to the extent appealed from, granted defendant’s motion for summary judgment dismissing the complaint based on plaintiff’s inability to establish a serious injury within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.

Defendant met his prima facie burden of showing that plaintiff’s claims of pain and headaches did not constitute a serious injury causally related to the 2009 motor vehicle accident. Plaintiff’s treating physician’s unaffirmed opinion that the accident exacerbated the chronic conditions was insufficient.

To the extent plaintiff’s claimed new injury of occipital headaches could constitute a serious injury within the meaning of Insurance Law § 5102 (d), plaintiff failed to provide any evidence of such injuries. Nor did her physician compare plaintiff’s measured range of motion in her cervical and lumbar spines to a preaccident standard, and thus any claimed deficits “could not be properly assessed to see whether they are significant” (Mirdita v Ash Leasing Inc., 101 AD3d 480, 480 [1st Dept 2012]).

Concur — Tom, J.P., Richter, Manzanet-Daniels, Maz-zarelli and Gische, JJ.