Duryea v. Zung

Appellate Division of the Supreme Court of New York

Duryea v. Zung

185 A.D.2d 912, 587 N.Y.S.2d 384, 1992 N.Y. App. Div. LEXIS 10102

Appellate Division of the Supreme Court of the State of New York·Decided August 24, 1992·Published·Cited by 5 cases

Opinion

— In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Ruskin, J.), entered June 13, 1990, which denied their motion to restore the case to the trial calendar and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The injured plaintiff suffered a cervical strain resulting in two episodes of pain and stiffness more than one year apart. In each episode, her recovery was relatively prompt and complete, and none of her several treating physicians discerned any abnormalities or evidence of injury in her X-ray or magnetic resonance imaging examination. Under these circumstances, the injured plaintiff has demonstrated only a mild or slight injury rather than a permanent or significant limitation of use of a body function or system (see, Insurance Law § 5102 [d]; see, e.g., Licari v Elliott, 57 NY2d 230; Konco v E.T.C. Leasing Corp., 160 AD2d 680; Christianson v Metropolitan Suburban Bus Auth., 157 AD2d 703; McLiverty v Urban, 131 AD2d 449). Furthermore, her subjective complaints of intermittent discomfort are insufficient to constitute prima facie evidence of serious injury (see, Scheer v Koubek, 70 NY2d 678; Beckett v Conte, 176 AD2d 774; Philpotts v Petrovic, 160 [913] AD2d 856). Accordingly, the Supreme Court properly granted the cross motion for summary judgment dismissing the complaint. Bracken, J. P., Sullivan, Harwood and Lawrence, JJ., concur.

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— In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Ruskin, J.), entered June 13, 1990, which denied their motion to restore the case to the trial calendar and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The injured plaintiff suffered a cervical strain resulting in two episodes of pain and stiffness more than one year apart. In each episode, her recovery was relatively prompt and complete, and none of her several treating physicians discerned any abnormalities or evidence of injury in her X-ray or magnetic resonance imaging examination. Under these circumstances, the injured plaintiff has demonstrated only a mild or slight injury rather than a permanent or significant limitation of use of a body function or system (see, Insurance Law § 5102 [d]; see, e.g., Licari v Elliott, 57 NY2d 230; Konco v E.T.C. Leasing Corp., 160 AD2d 680; Christianson v Metropolitan Suburban Bus Auth., 157 AD2d 703; McLiverty v Urban, 131 AD2d 449). Furthermore, her subjective complaints of intermittent discomfort are insufficient to constitute prima facie evidence of serious injury (see, Scheer v Koubek, 70 NY2d 678; Beckett v Conte, 176 AD2d 774; Philpotts v Petrovic, 160 [913] AD2d 856). Accordingly, the Supreme Court properly granted the cross motion for summary judgment dismissing the complaint. Bracken, J. P., Sullivan, Harwood and Lawrence, JJ., concur.

Duryea v. Zung, 185 A.D.2d 912, 587 N.Y.S.2d 384, 1992 N.Y. App. Div. LEXIS 10102 (N.Y. Ct. App. 1992).

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