Eldred v. Stoddard

217 A.D.2d 952, 630 N.Y.S.2d 171, 1995 N.Y. App. Div. LEXIS 8376

Opinion

Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Defendants sustained their burden of establishing prima facie that Sondra Eldred (plaintiff) did not sustain a serious injury. The burden thus shifted to plaintiff to come forward with evidence that she suffered a serious injury within one of several categories enumerated in the statute (see, Insurance Law § 5102 [d]; Shames v Murtha, 204 AD2d 841). Plaintiff failed to sustain her burden of making " 'a prima facie showing of serious injury sufficient to raise a triable issue of fact’ ” (Logan v Laidlaw School Tr., 175 AD2d 568, 569) with respect to "medically determined injury or impairment of a non-permanent nature which prevents [her] from performing substantially all of the material acts which constitute [her] usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” (Insurance Law § 5102 [d]). Nor did plaintiff offer proof that she suffered a "significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). The opinion of plaintiff’s physician that plaintiff suffers from chronic pain syndrome is based upon plaintiff’s subjective complaints of pain and is unsupported by any objective medical evidence (see, Logan v Laidlaw School Tr., supra). The physician’s affidavit, which appears to have been tailored to meet statutory requirements, was not sufficient to establish a serious injury (see, Antorino v Mordes, 202 AD2d 528; Dubois v Simpson, 182 AD2d 993). (Appeal from Order of Supreme Court, Steuben County, Scudder, J.—Summary Judgment.) Present—Denman, P. J., Pine, Callahan, Doerr and Balio, JJ.