Hicklin v. LaDuca

277 A.D.2d 966, 715 N.Y.S.2d 826

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2000
• Docket: Appeal No. 1
• Status: Published

Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants’ motions for a directed verdict at the close of proof on the ground that plaintiff failed to establish a prima facie case of serious injury within the meaning of Insurance Law § 5102 (d). Plaintiff’s treating orthopedist testified that plaintiff did not sustain the injuries set forth in plaintiffs initial bill of particulars, and that the injury specified in plaintiffs supplemental bill of particulars was not caused by the accident. Plaintiffs case thus was based entirely on plaintiffs subjective complaints of pain and limitation, which are insufficient to establish serious injury (see, Scheer v Koubek, 70 NY2d 678, 679; Mohamed v Dhanasar, 273 AD2d 451), and on the testimony of plaintiffs treating family practitioner, who failed to establish the extent of plaintiffs disability or relate it to the accident (see, Latiuk v Cona, 272 AD2d 988; Lichtman-Williams v Desmond, 202 AD2d 646, 646-647, lv dismissed 84 NY2d 849). The court did not err in restricting the testimony of plaintiffs family practitioner as a consequence of plaintiffs failure to make required disclosures. We have considered plaintiffs remaining contentions and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Erie County, Michalek, J. — Negligence.) Present — Hayes, J. P., Scudder, Kehoe and Lawton, JJ.