Wilkins v. Cameron

214 A.D.2d 557, 625 N.Y.S.2d 66, 1995 N.Y. App. Div. LEXIS 3541

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1995
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vinik, J.), dated November 12, 1993, which granted the motion of the defendants Kevin and Eugenia Cameron for summary judgment dismissing the complaint insofar as it is asserted against them based on the plaintiff’s failure to sustain a serious injury as defined by Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The affirmation prepared by Dr. Noel H. Kleppel which was submitted in support of the motion for summary judgment made out a prima facie case that the plaintiff had not sustained a serious injury as defined by Insurance Law § 5102 (d). In opposing the motion, the plaintiff failed to substantiate her allegation that for at least 90 of the 180 days immediately following the accident, she was prevented from performing substantially all of the material acts which constituted her usual and customary daily activities. The plaintiff also failed to establish that she suffered a "significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). Although the plaintiff’s medical expert concluded in his affirmation that the plaintiff sustained a limitation of motion of her cervical and lumbosacral spine and also of her right knee, he failed to specify the extent or degree of the limitation (see, Beckett v Conte, 176 AD2d 774; Petrone v Thornton, 166 AD2d 513; Partlow v Meehan, 155 AD2d 647). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.