Howell v. Williams

239 A.D.2d 558, 658 N.Y.S.2d 971, 1997 N.Y. App. Div. LEXIS 5681

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1997
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Franco, J.), dated September 18, 1996, which denied her motion for summary judgment dismissing the complaint based on the plaintiff’s failure to sustain a serious injury as defined by Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the defendant’s motion for summary judgment is granted, and the complaint is dismissed.

Dr. Jacob Toledano’s affirmed report, which the defendant submitted in support of her motion, made out a prima facie case (see, CPLR 3212 [b]) that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d).

The plaintiff sought to recover damages by claiming that she suffered a "significant limitation of the use of a body function or system” (Insurance Law § 5102 [d]). However, the affirmation of her medical expert which the plaintiff submitted in opposition to the motion failed to provide objective evidence of the extent or degree of the limitation and thus failed to raise a triable issue of fact as to the existence of a "significant limitation” (see, Beckett v Conte, 176 AD2d 774). Moreover, the plaintiff’s conclusory allegations that she was prevented from performing all of the material acts which constituted her usual and customary activities for not less than 90 of the 180 days immediately following the accident are belied by the admission in her verified bill of particulars that she missed only approximately two weeks from work and four days from school as a result of her alleged injuries. Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.