Christianson v. Metropolitan Suburban Bus Authority

157 A.D.2d 703, 549 N.Y.S.2d 802, 1990 N.Y. App. Div. LEXIS 439

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1990
• Status: Published

Opinion

in an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Kutner, J.), dated March 28, 1989, which granted the defendants’ motion for partial summary judgment dismissing the first and second causes of action of the complaint.

Ordered that the order is affirmed, with costs.

The defendants were granted partial summary judgment on the ground that the evidence was insufficient to raise a triable issue of fact as to whether the plaintiff Elizabeth Christianson suffered a “serious injury” within the meaning of Insurance Law § 5102 (d). The court has the duty in the first instance to decide whether a plaintiff has established a prima facie case of serious injury within the meaning of Insurance Law § 5102 (d) (see, Licari v Elliot, 57 NY2d 230, 237). At bar, the record shows that Mrs. Christianson’s symptoms have subsided, and the discomfort in her neck and back was described by her orthopedist as "mild to moderate.” She also told her neurosurgeon that her symptoms were "intermittent and at times she is pain free”. The neurosurgeon’s examination of Mrs. Christianson did not reveal any serious symptoms. Under these circumstances, the dismissal of the first and second causes of action was proper (see, Scheer v Koubek, 70 NY2d 678; McLiverty v Urban, 131 AD2d 449; Songer v Henry W. Muthig, Inc., 131 AD2d 657; Caiazzo v Crespi, 124 AD2d 623). Mollen, P. J., Bracken, Brown and Rosenblatt, JJ., concur.