Sims v. Megaris

15 A.D.3d 468, 790 N.Y.S.2d 487, 2005 N.Y. App. Div. LEXIS 1668

Opinion

In an action to recover damages for personal injuries, etc., the plaintiff Lynne A. Sims appeals from an order of the Supreme Court, Suffolk County (Henry, J.), dated January 29, 2004, which granted the defendant’s motion for summary judgment dismissing the complaint 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, with costs.

In support of her motion for summary judgment, the defendant submitted a transcript of the deposition testimony of the plaintiff Lynne A. Sims (hereinafter the plaintiff), copies of her medical records, and the affirmed medical report of the defendant’s own examining physician. This evidence was sufficient to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; Fragale v Geiger, 288 AD2d 431 [2001]; Hodges v Jones, 238 AD2d 962 [1997]; Gleason v Huber, 188 AD2d 581 [1992]; Pagano v Kingsbury, 182 AD2d 268 [1992]). The evidence submitted by the plaintiff in opposition was insufficient to raise a triable issue of fact. The plaintiffs physician failed to detail any objective medical evidence to support his conclusion that she sustained a significant and consequential limitation of use of her cervical spine (see Kauderer v Penta, 261 AD2d 365 [1999]), a conclusion which seemed to have been based solely on the plaintiffs subjective complaints of pain (see Scheer v Koubek, 70 NY2d 678 [1987]; Barrett v Howland, 202 AD2d 383 [1994]; LeBrun v Joyner, 195 AD2d 502 [1993]; Coughlan v Donnelly, 172 AD2d 480 [1991]).

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment. Adams, J.R, Cozier, Ritter and Skelos, JJ., concur.