Grier v. Kuhn

187 A.D.2d 559, 591 N.Y.S.2d 330, 1992 N.Y. App. Div. LEXIS 13025

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1992
• Status: Published

Opinion

In an action to recover damages for personal injuries arising from an automobile accident, the defendant appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated October 15, 1990, which denied her 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.

This Court has held in numerous cases that " '[t]he submission of a medical affidavit is not a sine qua non to prevailing on a summary judgment motion predicated upon a failure to establish a serious injury’ ” (Covington v Cinnirella, 146 AD2d 565, 566, quoting from Songer v Henry W. Muthig, Inc., 131 ), where, as here, the lack of merit to the plaintiffs serious injury claim is patent from an examination of the medical evidence submitted by the plaintiff herself (see, Michaelides v Martone, 186 AD2d 544; Popp v Kremer, 124 AD2d 720, 722).

In this case, an examination of the report of the plaintiffs chiropractor, the verified complaint, the plaintiffs verified bill of particulars, the plaintiff’s affidavit, and the affirmation of the plaintiffs physician, clearly show that there is absolutely no merit to the plaintiffs claims of a "serious injury” as defined in Insurance Law § 5104. Accordingly, the defendant is granted summary judgment dismissing the complaint. Thompson, J. P., Harwood, Balletta, Rosenblatt and Eiber, JJ., concur.