Lisa v. Pastor

262 A.D.2d 368, 691 N.Y.S.2d 164, 1999 N.Y. App. Div. LEXIS 6352

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winick, J.), dated June 16, 1998, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The Supreme Court correctly granted the defendants’ motion for summary judgment in the instant case. The defendants established a prima facie showing that the plaintiff did not sustain a serious injury as a result of the underlying accident (see, Gaddy v Eyler, 79 NY2d 955), thereby shifting the burden to the plaintiff to come forward with sufficient evidence that she sustained a serious injury (see, Licari v Elliott, 57 NY2d 230, 235; Lopez v Senatore, 65 NY2d 1017).

With respect to the plaintiff’s alleged back injuries, the affirmed report of her treating physician was insufficient to defeat the defendants’ motion, as it was based upon an examination conducted more than three years prior to the defendants’ summary judgment motion (see, Schultz v Von Voight, 216 AD2d 451, affd 86 NY2d 865; Beckett v Conte, 176 AD2d 774; Philpotts v Petrovic, 160 AD2d 856, 857). Additionally, the plaintiff’s physician failed to indicate what, if any, objective tests he had performed in reaching his conclusion (see, Lincoln v Johnson, 225 AD2d 593; Giannakis v Paschilidou, 212 AD2d 502; Antoniou v Duff, 204 AD2d 670).

Furthermore, the plaintiff presented no evidence that she had suffered a “significant disfigurement” within the meaning of Insurance Law § 5102 (d) (see, Loiseau v Maxwell, 256 AD2d 450; Koppelman v Lepler, 135 AD2d 507). S. Miller, J. P., Sullivan, Friedmann, Luciano and Feuerstein, JJ., concur.