Konco v. E.T.C. Leasing Corp.

Appellate Division of the Supreme Court of New York

Konco v. E.T.C. Leasing Corp.

160 A.D.2d 680, 553 N.Y.S.2d 457, 1990 N.Y. App. Div. LEXIS 3852

Appellate Division of the Supreme Court of the State of New York·Decided April 2, 1990·Published·Cited by 10 cases

Opinion

—In an action to recover damages for personal injuries, the defendants third-party plaintiffs E.T.C. Leasing Corp. and Frank Wall appeal from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), dated January 24, 1989, as denied their motion for summary judgment.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the appellants’ motion for summary judgment is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The Supreme Court improperly denied summary judgment to the appellants. The medical reports submitted by the respondent do not establish that she suffered a permanent loss of use of a body organ, member, function or system (see, Insurance Law § 5102 [d]). Those reports show that the respondent sustained a mild cervical sprain with some limitation of movement. We find that the injuries are not significant within [681]*681the meaning of the statute (see, Martini v Asmann, 146 AD2d 571; Grotzer v Levy, 133 AD2d 67). Moreover, ”[t]he subjective quality of plaintiffs transitory pain does not fall within the objective verbal definition of serious injury as contemplated by the No-Fault Insurance Law” (Scheer v Koubek, 70 NY2d 678, 679; see also, McLiverty v Urban, 131 AD2d 449; De Filippo v White, 101 AD2d 801). Sullivan, J. P., Harwood, Balletta and Rosenblatt, JJ., concur.

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—In an action to recover damages for personal injuries, the defendants third-party plaintiffs E.T.C. Leasing Corp. and Frank Wall appeal from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), dated January 24, 1989, as denied their motion for summary judgment.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the appellants’ motion for summary judgment is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The Supreme Court improperly denied summary judgment to the appellants. The medical reports submitted by the respondent do not establish that she suffered a permanent loss of use of a body organ, member, function or system (see, Insurance Law § 5102 [d]). Those reports show that the respondent sustained a mild cervical sprain with some limitation of movement. We find that the injuries are not significant within [681]*681the meaning of the statute (see, Martini v Asmann, 146 AD2d 571; Grotzer v Levy, 133 AD2d 67). Moreover, ”[t]he subjective quality of plaintiffs transitory pain does not fall within the objective verbal definition of serious injury as contemplated by the No-Fault Insurance Law” (Scheer v Koubek, 70 NY2d 678, 679; see also, McLiverty v Urban, 131 AD2d 449; De Filippo v White, 101 AD2d 801). Sullivan, J. P., Harwood, Balletta and Rosenblatt, JJ., concur.

Konco v. E.T.C. Leasing Corp., 160 A.D.2d 680, 553 N.Y.S.2d 457, 1990 N.Y. App. Div. LEXIS 3852 (N.Y. Ct. App. 1990).

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160 A.D.2d 680 (Konco v. E.T.C. Leasing Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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