Magras v. Colasuonno

278 A.D.2d 388, 717 N.Y.S.2d 627, 2000 N.Y. App. Div. LEXIS 13195

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 2000
• Status: Published

Opinions

In an action to recover damages for personal injuries, the defendants appeal from a judgment of Supreme Court, Richmond County (Maltese, J.), dated June 20, 2000, which, after a nonjury trial on the issue of damages, and upon the denial of their motion pursuant to CPLR 4401 to dismiss the complaint for failure to establish a prima facie case that the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d), is in favor of the plaintiff and against them in the principal sum of $20,000.

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

The plaintiff failed to establish a prima facie case that he sustained a serious injury within the meaning of Insurance Law § 5102 (d). The only medical testimony offered at trial was that of the plaintiffs treating chiropractor. Although the chiropractor testified that the plaintiff sustained a herniated disc, he conceded that this conclusion was based on the inadmissible reports of other doctors who did not testify (see, Merisca v Alford, 243 AD2d 613; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). In addition, while the chiropractor quantified certain limitations of motion of the plaintiffs lumbar spine, he failed to identify any objective tests used to arrive at his conclusions (see, Grossman v Wright, 268 AD2d 79). Therefore, the Supreme Court should have granted the defendants’ motion to dismiss the complaint. O’Brien, J. P., Sullivan, Krausman and Schmidt, JJ., concur.