Rodriguez v. Prieto

Appellate Division of the Supreme Court of New York

Rodriguez v. Prieto

282 A.D.2d 592, 722 N.Y.S.2d 917, 2001 N.Y. App. Div. LEXIS 3791

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 16, 2001

StatusPublished

This text of 282 A.D.2d 592 (Rodriguez v. Prieto) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rodriguez v. Prieto, 282 A.D.2d 592, 722 N.Y.S.2d 917, 2001 N.Y. App. Div. LEXIS 3791 (N.Y. Ct. App. 2001).

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Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Franco, J.), entered April 21, 2000, 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 established a prima facie case that the plaintiffs injuries were not serious through, inter alia, the affirmed report of a neurologist, who found, upon examination, that the plaintiff was “totally normal” (see, Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a [593]*593triable issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law § 5102 (d). The affidavit sworn to by the plaintiffs chiropractor failed to specify the nature of the objective tests he performed in arriving at his conclusions concerning the alleged restrictions in the plaintiffs range of motion (see, Grossman v Wright, 268 AD2d 79; Smith v Askew, 264 AD2d 834). In addition, the plaintiffs chiropractor failed to set forth the treatment, if any, that the plaintiff received between her visit on April 21, 1995, and her subsequent one, nearly five years later, on February 25, 2000 (see, Smith v Askew, supra).

The plaintiffs claim as to the timeliness of the defendant’s motion is raised for the first time on appeal and therefore has not been reached by this Court (see, Shelton v Shelton, 151 AD2d 659). Santucci, J. P., Altman, Luciano and H. Miller, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Franco, J.), entered April 21, 2000, 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 established a prima facie case that the plaintiffs injuries were not serious through, inter alia, the affirmed report of a neurologist, who found, upon examination, that the plaintiff was “totally normal” (see, Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a [593]*593triable issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law § 5102 (d). The affidavit sworn to by the plaintiffs chiropractor failed to specify the nature of the objective tests he performed in arriving at his conclusions concerning the alleged restrictions in the plaintiffs range of motion (see, Grossman v Wright, 268 AD2d 79; Smith v Askew, 264 AD2d 834). In addition, the plaintiffs chiropractor failed to set forth the treatment, if any, that the plaintiff received between her visit on April 21, 1995, and her subsequent one, nearly five years later, on February 25, 2000 (see, Smith v Askew, supra).

The plaintiffs claim as to the timeliness of the defendant’s motion is raised for the first time on appeal and therefore has not been reached by this Court (see, Shelton v Shelton, 151 AD2d 659). Santucci, J. P., Altman, Luciano and H. Miller, JJ., concur.

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282 A.D.2d 592, 722 N.Y.S.2d 917, 2001 N.Y. App. Div. LEXIS 3791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-prieto-nyappdiv-2001.

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