Tipping-Cestari v. Kilhenny

174 A.D.2d 663, 571 N.Y.S.2d 525, 1991 N.Y. App. Div. LEXIS 8516

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1991
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Cohalan, J.), entered October 17, 1989, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants contend that the plaintiff Arlene TippingCestari failed, as a matter of law, to establish that she sustained a "serious injury” within the meaning of Insurance Law § 5102 (d). We agree. It is for the court to determine in the first instance whether a prima facie showing of "serious injury” has been made out, and summary judgment should be granted where, as here, the plaintiff Tipping-Cestari has failed to meet her burden (see, Licari v Elliott, 57 NY2d 230; Palmer v Amaker, 141 AD2d 622). The medical reports submitted by the plaintiffs in opposition to the motion for summary judgment reveal that the plaintiff Tipping-Cestari sustained a cervical and lumbar sprain, with an unspecified degree of restriction of cervical motion. These reports are insufficient to establish that she suffered either "permanent loss of use” or "significant limitation” of a body organ, member, function, or system (see, Insurance Law § 5102 [d]; Maenza v Letkajornsook, 172 AD2d 500; O’Neill v Rogers, 163 AD2d 466; Konco v E.T.C. Leasing Corp., 160 AD2d 680; Delfino v Davey, 159 AD2d 604). Moreover, her continuing subjective complaints of pain cannot suffice to establish serious injury under the statute (see, Scheer v Koubek, 70 NY2d 678; O’Neill v Rogers, supra). Bracken, J. P., Eiber, Harwood and Balletta, JJ., concur.