Marquez v. Torres

250 A.D.2d 445, 671 N.Y.S.2d 662, 1998 N.Y. App. Div. LEXIS 5595

Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about April 4,1997, which, insofar as appealed from, granted defendants’ motion for summary judgment dismissing the complaint for failure to make out a prima facie case of serious injury within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.

The action was properly dismissed for lack of evidence that the alleged curtailment of plaintiffs daily activities was attributable to a “medically determined” injury. Indeed, plaintiff failed to offer any probative medical proof whatsoever (see, McLoyrd v Pennypacker, 178 AD2d 227, lv denied 79 NY2d 754), and we see no merit to his excuse that he did not have time to obtain a sworn statement from his doctor. Concur — Sullivan, J. P., Rosenberger, Williams and Tom, JJ.