McKie v. Hughes

Appellate Division of the Supreme Court of New York

McKie v. Hughes

273 A.D.2d 448, 712 N.Y.S.2d 365, 2000 N.Y. App. Div. LEXIS 7355

Appellate Division of the Supreme Court of the State of New York·Decided June 26, 2000·Published·Cited by 1 cases

Opinion

In an action to recover damages for [449]*449personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated February 4, 1999, which denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

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

The defendant made a prima facie showing of entitlement to judgment as a matter of law. In opposition, the plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law § 5102 (d). A physician’s affirmation, which was the only competent medical evidence submitted in opposition to the motion, failed to set forth the objective tests he performed in reaching his conclusions concerning restrictions in the plaintiffs range of motion (see, Smith v Askew, 264 AD2d 834; Kauderer v Penta, 261 AD2d 365; Grossman v Wright, 268 AD2d 79). The affirmation also failed to set forth the treatment, if any, that the plaintiff received for her alleged injuries (see, Williams v Ciaramella, 250 AD2d 763). Thompson, J. P., S. Miller, Krausman, Florio and Schmidt,.JJ., concur.

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In an action to recover damages for [449]*449personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated February 4, 1999, which denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

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

The defendant made a prima facie showing of entitlement to judgment as a matter of law. In opposition, the plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law § 5102 (d). A physician’s affirmation, which was the only competent medical evidence submitted in opposition to the motion, failed to set forth the objective tests he performed in reaching his conclusions concerning restrictions in the plaintiffs range of motion (see, Smith v Askew, 264 AD2d 834; Kauderer v Penta, 261 AD2d 365; Grossman v Wright, 268 AD2d 79). The affirmation also failed to set forth the treatment, if any, that the plaintiff received for her alleged injuries (see, Williams v Ciaramella, 250 AD2d 763). Thompson, J. P., S. Miller, Krausman, Florio and Schmidt,.JJ., concur.

McKie v. Hughes, 273 A.D.2d 448, 712 N.Y.S.2d 365, 2000 N.Y. App. Div. LEXIS 7355 (N.Y. Ct. App. 2000).

Pincite

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Opinion

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