Gabianelli v. Gerardi

175 A.D.2d 468, 572 N.Y.S.2d 516, 1991 N.Y. App. Div. LEXIS 9820

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 18, 1991
• Status: Published

Opinion

Casey, J.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Jiudice, J.), entered April 25, 1990 in Dutchess County, which granted defendant’s motion for summary judgment dismissing the complaint.

Because defendant satisfied her burden of submitting proof in admissible form that plaintiff Carol M. Gabianelli (hereinafter plaintiff) had not sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see, Rapp v Suriano, 162 AD2d 837), plaintiff bore the burden of establishing a prima facie case of serious injury (see, Zaffuto v Martorano, 161 AD2d 639). Plaintiffs subjective complaints of persistent low-back pain and its impact on her daily routine are insufficient to meet this burden in the absence of supporting credible medical evidence or documentation (see, Rivera v Pula, 173 AD2d 1000; Zaffuto v Martorano, supra; see also, Scheer v Koubek, 70 NY2d 678). Plaintiff points to reports of her treating physician and a radiologist which refer to a mild or minimal disc protrusion or bulging and probable mild disc herniation, but there is no evidence that these injuries are permanent in nature or that they are causally related to the accident out of which this action arose. Summary judgment was, therefore, properly granted to defendant.

Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.