Sauer v. Marks

278 A.D.2d 301, 718 N.Y.S.2d 187, 2000 N.Y. App. Div. LEXIS 12969

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 2000
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff Amanda Sauer appeals from so much of an order of the Supreme Court, Nassau County (Lally, J.), entered August 26, 1999, as granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint insofar as asserted by her on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant met his initial burden of establishing as a matter of law that the appellant did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting the affirmations of an orthopedist and neurologist who recently had examined the appellant (see, Gaddy v Eyler, 79 NY2d 955).

Although the affidavit of the appellant’s chiropractor that she submitted in opposition to the defendant’s motion for summary judgment was in admissible form (see, Feinman v Men-nan Oil Co., 248 AD2d 503; Collins v AA Truck Renting Corp., 209 AD2d 363; Matter of Hudson v Board of Elections, 207 AD2d 508), the chiropractor referred to findings from his examination of the appellant more than one year before the motion for summary judgment, and his “projections of permanent limitations have no probative value in the absence of a recent examination” (Bidetto v Williams, 276 AJD2d 516; Mohamed v Dhanasar, 273 AD2d 451; Smith v Askew, 264 AD2d 834; Kauderer v Penta, 261 AD2d 365; Evans v Mohammad, 243 AD2d 604). Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.