O'Neill v. Rogers

163 A.D.2d 466, 559 N.Y.S.2d 669, 1990 N.Y. App. Div. LEXIS 8771

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1990
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (G. Aronin, J.), dated March 18, 1989, which denied their motion for summary judgment dismissing the complaint.

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

A review of the record demonstrates that the plaintiff Patrice Ann O’Neill has failed to establish a prima facie case that she sustained "serious injury” within the meaning of Insurance Law § 5102 (d). While the plaintiffs submitted two medical reports in which the examining physicians characterized her alleged disability as "permanent”, these reports were prepared over five years prior to the defendants’ motion and, accordingly, were not premised upon any recent medical examination of the plaintiff (see, Covington v Cinnirella, 146 AD2d 565; see also, Philpotts v Petrovic, 160 AD2d 856). Moreover, neither report provides more than a series of conclusory assertions with regard to the plaintiff Patrice Ann O’Neill’s alleged "permanent partial disability” (see, Lopez v Senatore, 65 NY2d 1017, 1019) and neither quantifies with adequate specificity the extent to which her range of movement is allegedly limited (see, Philpotts v Petrovic, supra). Her continuing subjective complaints of occasional or recurrent pain cannot suffice to establish serious injury under the statute (see, Philpotts v Petrovic, supra; Phillips v Costa, 160 AD2d 855; see also, Scheer v Koubek, 70 NY2d 678; Konco v E.T.C. Leasing Corp., 160 AD2d 680; Delfino v Davey, 159 AD2d 604). Brown, J. P., Lawrence, Kooper and O’Brien, JJ., concur.