Maenza v. Letkajornsook

172 A.D.2d 500, 567 N.Y.S.2d 850, 1991 N.Y. App. Div. LEXIS 4304

Opinion

In a negligence action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Roncallo, J.), dated June 7, 1989, which denied their motion for summary judgment dismissing the complaint.

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

In this personal injury action arising out of an automobile accident, the defendants moved for summary judgment on the ground, inter alia, that the plaintiff did not suffer a "serious injury” as defined by Insurance Law § 5102 (d). In opposition, the plaintiff submitted a report prepared by her chiropractor that contained a general assertion that the plaintiff suffers from a "weakness of the supportive tissue structure”. Also in opposition, the plaintiff submitted a report and an affidavit by an orthopedist. In that report, the orthopedist noted that as a result of the accident the plaintiff suffered an "acute sprain of the cervical spine”. With respect to this sprain, the orthopedist stated that "it is not possible to assess the extent of any permanency”. The orthopedist also noted that, because of the accident, the plaintiff suffered a "contusion of the left knee”, whose sequelae he diagnosed as chronic.

These allegations of sprains and contusions are insufficient to establish that the plaintiff sustained a "serious injury” as defined by the statute (Insurance Law § 5102 [d]; see, Scheer v Koubek, 70 NY2d 678; Licari v Elliott, 57 NY2d 230). Accord ingly, the Supreme Court erred in denying the defendants’ motion for summary judgment (see also, Konco v E.T.C. Leasing Corp., 160 AD2d 680; Christianson v Metropolitan Suburban Bus Auth., 157 AD2d 703; Sundack v Power Test Petro Corp., 150 AD2d 440). Mangano, P. J., Brown, Sullivan, Harwood and Miller, JJ., concur.