Kallicharan v. Sooknanan

282 A.D.2d 573, 723 N.Y.S.2d 376, 2001 N.Y. App. Div. LEXIS 3793

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (LaTorella, J.), dated August 10, 2000, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants established, prima facie, that the plaintiff’s injuries were not serious through the affirmed medical reports of an orthopedist and a neurologist. Both doctors examined the plaintiff and concluded that she had sustained “no disability” (see, Gaddy v Eyler, 79 NY2d 955, 956-957).

The affirmation prepared by the plaintiff’s treating physician, which was submitted in opposition to the defendants’ motion, failed to raise a triable issue of fact (see, CPLR 3212 [b]). The plaintiff’s physician failed to set forth the objective tests he performed in reaching his conclusions concerning alleged restrictions of motion in the plaintiffs cervical and lumbar spines (see, Grossman v Wright, 268 AD2d 79; Smith v Askew, 264 AD2d 834). Furthermore, under the circumstances of this case, where the plaintiff acknowledged the existence of a preexisting injury to the right knee, and the plaintiffs expert failed to indicate an awareness of the condition of that knee just before the subject accident, his finding that the current restriction of motion in her right knee was causally related to that accident is mere speculation (see, Waaland v Weiss, 228 AD2d 435). Bracken, P. J., S. Miller, McGinity and Schmidt, JJ., concur.