Deangelo v. Marcia Service Corp.

199 A.D.2d 58, 605 N.Y.S.2d 31, 1993 N.Y. App. Div. LEXIS 11751

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1993
• Status: Published

Opinion

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about October 22, 1992, granting defendant Trible’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The IAS Court properly granted summary judgment to defendant, who predicated his motion, inter alia, upon plaintiffs bill of particulars, plaintiff’s deposition testimony, and a medical report prepared at the behest of plaintiff. These submissions established that there is no merit to plaintiffs claim of "serious injury” within the meaning of Insurance Law § 5102 (d) (see, Craft v Brantuk, 195 AD2d 438). Moreover, plaintiffs opposing affidavits failed to rebut that showing, since complaints of recurrent pain and repetition of the word "permanent” do not suffice to establish a question of fact concerning "serious injury”, at least in the absence of medical affidavits or medical diagnostic tests demonstrating that the purported limitations suffered by plaintiff were objectively measured or quantified (see, Forte v Vaccaro, 175 AD2d 153). Thus, the action was properly dismissed. Concur—Murphy, P. J., Rosenberger, Ross and Nardelli, JJ.