Sarkis v. Gandy

Appellate Division of the Supreme Court of New York

Sarkis v. Gandy

15 A.D.3d 942, 789 N.Y.S.2d 578, 2005 N.Y. App. Div. LEXIS 1057

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

DecidedFebruary 4, 2005

StatusPublished

Cited by4 cases

This text of 15 A.D.3d 942 (Sarkis v. Gandy) 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

Sarkis v. Gandy, 15 A.D.3d 942, 789 N.Y.S.2d 578, 2005 N.Y. App. Div. LEXIS 1057 (N.Y. Ct. App. 2005).

Pincite

Opinion

[943]*943Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered April 5, 2004. The order granted defendants’ motion seeking summary judgment dismissing the complaint in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for an allegedly serious injury sustained to her cervical spine as a result of an automobile accident. Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint. Defendants met their initial burden on the motion by submitting competent medical evidence establishing as a matter of law that plaintiff did not sustain a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Hoffman v Stechenfinger, 4 AD3d 778, 779 [2004]; Cook v Franz, 309 AD2d 1234, 1234-1235 [2003]; Winslow v Callaghan, 306 AD2d 853, 854 [2003]). In opposition, plaintiff failed to raise a triable issue of fact concerning whether plaintiff sustained a serious injury (see Cook, 309 AD2d at 1235; Winslow, 306 AD2d at 854; Brown v Wagg, 280 AD2d 891 [2001], lv denied 96 NY2d 711 [2001]). Under the circumstances, the averments of plaintiff’s treating chiropractor that plaintiff had a “10-15% limitation of the use of her upper trapezius area,” and further that plaintiffs cervical sprain/strain and consequent limitations were “permanent in nature,” are insufficient to defeat summary judgment. Those averments are conclusory and, in any event, are contradicted by the contemporaneous records of plaintiffs chiropractic treatment. Those records do not quantify any restriction in plaintiffs cervical range of motion and further indicate that such range of motion was only “mildly restricted” following the accident, a qualification that is insufficient to support the claim (see Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Licari v Elliott, 57 NY2d 230, 236 [1982]; see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]). Further, those records show that plaintiffs “[c]ervical range of motion [was] full and pain[-]free in all six planes” during plaintiffs most recent chiropractic visit. Present — Scudder, J.E, Kehoe, Smith, Pine and Hayes, JJ.

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[943]*943Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered April 5, 2004. The order granted defendants’ motion seeking summary judgment dismissing the complaint in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for an allegedly serious injury sustained to her cervical spine as a result of an automobile accident. Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint. Defendants met their initial burden on the motion by submitting competent medical evidence establishing as a matter of law that plaintiff did not sustain a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Hoffman v Stechenfinger, 4 AD3d 778, 779 [2004]; Cook v Franz, 309 AD2d 1234, 1234-1235 [2003]; Winslow v Callaghan, 306 AD2d 853, 854 [2003]). In opposition, plaintiff failed to raise a triable issue of fact concerning whether plaintiff sustained a serious injury (see Cook, 309 AD2d at 1235; Winslow, 306 AD2d at 854; Brown v Wagg, 280 AD2d 891 [2001], lv denied 96 NY2d 711 [2001]). Under the circumstances, the averments of plaintiff’s treating chiropractor that plaintiff had a “10-15% limitation of the use of her upper trapezius area,” and further that plaintiffs cervical sprain/strain and consequent limitations were “permanent in nature,” are insufficient to defeat summary judgment. Those averments are conclusory and, in any event, are contradicted by the contemporaneous records of plaintiffs chiropractic treatment. Those records do not quantify any restriction in plaintiffs cervical range of motion and further indicate that such range of motion was only “mildly restricted” following the accident, a qualification that is insufficient to support the claim (see Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Licari v Elliott, 57 NY2d 230, 236 [1982]; see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]). Further, those records show that plaintiffs “[c]ervical range of motion [was] full and pain[-]free in all six planes” during plaintiffs most recent chiropractic visit. Present — Scudder, J.E, Kehoe, Smith, Pine and Hayes, JJ.

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Bluebook (online)

15 A.D.3d 942, 789 N.Y.S.2d 578, 2005 N.Y. App. Div. LEXIS 1057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarkis-v-gandy-nyappdiv-2005.

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