Rodriguez v. Kwan Cheung Tsui

233 A.D.2d 382, 650 N.Y.S.2d 568, 1996 N.Y. App. Div. LEXIS 11638

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1996
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Milano, J.), dated January 10, 1996, which denied his motion for summary judgment dismissing the complaint.

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

The defendant moved for summary judgment contending that the plaintiff had not sustained a serious injury as defined by Insurance Law § 5102 (d). The only medical evidence submitted by the plaintiff in opposition to the defendant’s motion for summary judgment was a physician’s affirmation which failed to provide objective evidence of the extent or degree of the alleged physical limitation and its duration. This evidence thus failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff suffered a significant limitation of the use of a body function or system (see, Insurance Law § 5102 [d]; see, Beckett v Conte, 176 AD2d 774).

Moreover, the conclusory evidence submitted by the plaintiff in opposition to the motion was insufficient to raise an issue of fact as to whether the plaintiff had been incapacitated from employment for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment as required under Insurance Law § 5102 (d). We note that while in opposition to the motion the plaintiff claimed to have been unable to return to work for four months following the accident, an application for no-fault benefits signed by the plaintiff approximately four months after the accident indicated that he had lost only two weeks of work. Rosenblatt, J. P., Thompson, Santucci and Altman, JJ., concur.