Russell v. City of Mount Vernon

Appellate Division of the Supreme Court of New York

Russell v. City of Mount Vernon

256 A.D.2d 454, 682 N.Y.S.2d 91, 1998 N.Y. App. Div. LEXIS 13492

Appellate Division of the Supreme Court of the State of New York·Decided December 16, 1998·Published·Cited by 7 cases

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered January 2, 1998, which granted the [455] defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Ginger Russell had not sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendants established a prima facie case that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955), and the Supreme Court correctly determined that the plaintiffs’ evidence failed to raise a triable question óf fact on the issue. The plaintiffs submitted, inter alia, an affirmation by Dr. Gerald L. Gaughan, a physician who examined the injured plaintiff, in which he stated that the injured plaintiff suffered from specifically quantified restrictions of movement of her lumbosacral spine. However, Dr. Gaughan failed to indicate any objective medical tests which he performed to determine these specifically quantified measurements (see, Merisca v Alford, 243 AD2d 613; Lincoln v Johnson, 225 AD2d 593; Giannakis v Paschilidou, 212 AD2d 502; Antoniou v Duff, 204 AD2d 670). The remainder of the plaintiffs’ evidence in opposition to the defendants’ motion was not considered, as it was not submitted in admissible form (see, Grasso v Angerami, 79 NY2d 813; Mobley v Riportella, 241 AD2d 443, 444). Rosenblatt, J. P., O’Brien, Sullivan, Krausman and Florio, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered January 2, 1998, which granted the [455] defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Ginger Russell had not sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendants established a prima facie case that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955), and the Supreme Court correctly determined that the plaintiffs’ evidence failed to raise a triable question óf fact on the issue. The plaintiffs submitted, inter alia, an affirmation by Dr. Gerald L. Gaughan, a physician who examined the injured plaintiff, in which he stated that the injured plaintiff suffered from specifically quantified restrictions of movement of her lumbosacral spine. However, Dr. Gaughan failed to indicate any objective medical tests which he performed to determine these specifically quantified measurements (see, Merisca v Alford, 243 AD2d 613; Lincoln v Johnson, 225 AD2d 593; Giannakis v Paschilidou, 212 AD2d 502; Antoniou v Duff, 204 AD2d 670). The remainder of the plaintiffs’ evidence in opposition to the defendants’ motion was not considered, as it was not submitted in admissible form (see, Grasso v Angerami, 79 NY2d 813; Mobley v Riportella, 241 AD2d 443, 444). Rosenblatt, J. P., O’Brien, Sullivan, Krausman and Florio, JJ., concur.

Russell v. City of Mount Vernon, 256 A.D.2d 454, 682 N.Y.S.2d 91, 1998 N.Y. App. Div. LEXIS 13492 (N.Y. Ct. App. 1998).

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