Dumont v. Sandhir

Appellate Division of the Supreme Court of New York

Dumont v. Sandhir

201 A.D.2d 450, 609 N.Y.S.2d 800, 1994 N.Y. App. Div. LEXIS 1017

Appellate Division of the Supreme Court of the State of New York·Decided February 7, 1994·Published·Cited by 5 cases

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Graci, J.), dated December 6, 1991, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

Contrary to the plaintiffs’ contentions, a review of the medical records of the treating physician, the records of the physical therapist, as well as the injured plaintiff’s own deposition testimony, demonstrates that the injured plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) (see, Iaria v Romero, 194 AD2d 769; Pagano v Kingsbury, 182 AD2d 268; Rhind v Naylor, 187 AD2d 498). Nor are we persuaded otherwise by the orthopedist’s affirmation, since it is comprised of "conclusory assertions tailored to meet the statutory requirements” (Lopez v Senatore, 65 NY2d 1017, 1019; see also, Waldman v Dong Kook Chang, 175 AD2d 204), and because the orthopedist’s diagnosis is based primarily upon the injured plaintiff’s own subjective complaints of pain (see, Georgia v Ramautar, 180 AD2d 713). [451]*451Under these circumstances, the injured plaintiff failed to establish a prima facie case of serious injury (see, Scheer v Koubek, 70 NY2d 678; Licari v Elliott, 57 NY2d 230). Accordingly, the defendant’s motion for summary judgment is granted. Thompson, J. P., Rosenblatt, Altman and Hart, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Graci, J.), dated December 6, 1991, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

Contrary to the plaintiffs’ contentions, a review of the medical records of the treating physician, the records of the physical therapist, as well as the injured plaintiff’s own deposition testimony, demonstrates that the injured plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) (see, Iaria v Romero, 194 AD2d 769; Pagano v Kingsbury, 182 AD2d 268; Rhind v Naylor, 187 AD2d 498). Nor are we persuaded otherwise by the orthopedist’s affirmation, since it is comprised of "conclusory assertions tailored to meet the statutory requirements” (Lopez v Senatore, 65 NY2d 1017, 1019; see also, Waldman v Dong Kook Chang, 175 AD2d 204), and because the orthopedist’s diagnosis is based primarily upon the injured plaintiff’s own subjective complaints of pain (see, Georgia v Ramautar, 180 AD2d 713). [451]*451Under these circumstances, the injured plaintiff failed to establish a prima facie case of serious injury (see, Scheer v Koubek, 70 NY2d 678; Licari v Elliott, 57 NY2d 230). Accordingly, the defendant’s motion for summary judgment is granted. Thompson, J. P., Rosenblatt, Altman and Hart, JJ., concur.

Dumont v. Sandhir, 201 A.D.2d 450, 609 N.Y.S.2d 800, 1994 N.Y. App. Div. LEXIS 1017 (N.Y. Ct. App. 1994).

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