Sherlock v. Smith

Appellate Division of the Supreme Court of New York

Sherlock v. Smith

273 A.D.2d 95, 709 N.Y.S.2d 176, 2000 N.Y. App. Div. LEXIS 6610

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

DecidedJune 15, 2000

StatusPublished

Cited by11 cases

This text of 273 A.D.2d 95 (Sherlock v. Smith) 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

Sherlock v. Smith, 273 A.D.2d 95, 709 N.Y.S.2d 176, 2000 N.Y. App. Div. LEXIS 6610 (N.Y. Ct. App. 2000).

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Opinion

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about April 15, 1999, which denied defendant’s motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint.

Plaintiff’s submissions in response to defendant’s summary judgment motion failed to demonstrate that he suffered a serious injury within the meaning of Insurance Law § 5102 (d). The affidavit of Dr. Harrison submitted by plaintiff does not indicate that he reviewed the actual MRI films upon which he relied nor did he attach a copy of a sworn MRI report to his affidavit. Accordingly, his opinion was without probative value (Bandoian v Bernstein, 254 AD2d 205; Braham v U-Haul Co., 195 AD2d 277). We also note that the affidavit failed to indicate that Dr. Harrison himself did any objective tests that would support his ultimate conclusions.

Finally, plaintiff’s allegation that he was out of work for approximately four months as a result of the accident did not warrant denial of the motion. A plaintiff’s self-serving claim that he was unable to perform “substantially all of the material acts which constitute his usual and customary activities for not less than [90] days during the [180] days immediately following [an accident]” is insufficient, without more, to withstand a defendant’s summary judgment motion (Sigona v New York City Tr. Auth., 255 AD2d 231). Rather, to be sufficient, the claim should be supported by a physician’s affidavit substantiating that the plaintiffs alleged impairment was attributable to a medically determined injury (supra). Here, as previously noted, Dr. Harrison’s affidavit failed to suffice for that purpose. Concur — Williams, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.

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Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about April 15, 1999, which denied defendant’s motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint.

Plaintiff’s submissions in response to defendant’s summary judgment motion failed to demonstrate that he suffered a serious injury within the meaning of Insurance Law § 5102 (d). The affidavit of Dr. Harrison submitted by plaintiff does not indicate that he reviewed the actual MRI films upon which he relied nor did he attach a copy of a sworn MRI report to his affidavit. Accordingly, his opinion was without probative value (Bandoian v Bernstein, 254 AD2d 205; Braham v U-Haul Co., 195 AD2d 277). We also note that the affidavit failed to indicate that Dr. Harrison himself did any objective tests that would support his ultimate conclusions.

Finally, plaintiff’s allegation that he was out of work for approximately four months as a result of the accident did not warrant denial of the motion. A plaintiff’s self-serving claim that he was unable to perform “substantially all of the material acts which constitute his usual and customary activities for not less than [90] days during the [180] days immediately following [an accident]” is insufficient, without more, to withstand a defendant’s summary judgment motion (Sigona v New York City Tr. Auth., 255 AD2d 231). Rather, to be sufficient, the claim should be supported by a physician’s affidavit substantiating that the plaintiffs alleged impairment was attributable to a medically determined injury (supra). Here, as previously noted, Dr. Harrison’s affidavit failed to suffice for that purpose. Concur — Williams, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.

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Bluebook (online)

273 A.D.2d 95, 709 N.Y.S.2d 176, 2000 N.Y. App. Div. LEXIS 6610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherlock-v-smith-nyappdiv-2000.

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