Howard v. Rogalski

Appellate Division of the Supreme Court of New York

Howard v. Rogalski

291 A.D.2d 909, 738 N.Y.S.2d 278, 2002 N.Y. App. Div. LEXIS 1160

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 1, 2002

StatusPublished

Cited by3 cases

This text of 291 A.D.2d 909 (Howard v. Rogalski) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Howard v. Rogalski, 291 A.D.2d 909, 738 N.Y.S.2d 278, 2002 N.Y. App. Div. LEXIS 1160 (N.Y. Ct. App. 2002).

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Opinion

—Appeal from an order of Supreme Court, Cayuga County (Corning, J.), entered November 20, 2000, which denied defendants’ motion for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Supreme Court erred in denying defendants’ motion for summary judgment dismissing the complaint. Defendants met their initial burden by establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and plaintiff failed to raise a triable issue of fact. Although the medical reports and examinations establish that plaintiff had back pain, her X rays were normal and there was no limitation of motion, nor is there objective medical evidence in the record to support her subjective [910]*910complaints of pain (see, Abdallah v Flattery, 280 AD2d 917, lv denied 96 NY2d 719; Brown v Wagg, 280 AD2d 891, 891-892, lv denied 96 NY2d 711; Stowell v Safee, 251 AD2d 1026; Tipping-Cestari v Kilhenny, 174 AD2d 663, 664). We disagree with plaintiff that her morbid obesity constitutes a “significant disfigurement” within the meaning of Insurance Law § 5102 (d). In any event, her morbid obesity was not causally related to the accident. Present — Pigott, Jr., P.J., Green, Hayes, Scudder and Gorski, JJ.

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—Appeal from an order of Supreme Court, Cayuga County (Corning, J.), entered November 20, 2000, which denied defendants’ motion for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Supreme Court erred in denying defendants’ motion for summary judgment dismissing the complaint. Defendants met their initial burden by establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and plaintiff failed to raise a triable issue of fact. Although the medical reports and examinations establish that plaintiff had back pain, her X rays were normal and there was no limitation of motion, nor is there objective medical evidence in the record to support her subjective [910]*910complaints of pain (see, Abdallah v Flattery, 280 AD2d 917, lv denied 96 NY2d 719; Brown v Wagg, 280 AD2d 891, 891-892, lv denied 96 NY2d 711; Stowell v Safee, 251 AD2d 1026; Tipping-Cestari v Kilhenny, 174 AD2d 663, 664). We disagree with plaintiff that her morbid obesity constitutes a “significant disfigurement” within the meaning of Insurance Law § 5102 (d). In any event, her morbid obesity was not causally related to the accident. Present — Pigott, Jr., P.J., Green, Hayes, Scudder and Gorski, JJ.

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Bluebook (online)

291 A.D.2d 909, 738 N.Y.S.2d 278, 2002 N.Y. App. Div. LEXIS 1160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-rogalski-nyappdiv-2002.

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