Zapputo v. Martorano

161 A.D.2d 639

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1990
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Brown appeals from an order of the Supreme Court, Nassau County (Kutner, J.), dated January 17, 1989, which denied his motion for summary judgment dismissing the complaint insofar as it is against him.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as it is against the defendant Brown, and the action against the remaining defendants is severed.

Contrary to the conclusions of the Supreme Court, we find that the plaintiff has failed to meet her burden of establishing a prima facie case of "serious injury” as defined in Insurance Law § 5102 (d). The record establishes that the plaintiff was able to return to work, as a part-time student typist, approximately two weeks subsequent to the accident. Although she complained of headaches and intermittent pain, these subjective complaints were insufficient to defeat the appellant’s motion (see, Gootz v Kelly, 140 AD2d 874; McLiverty v Urban, 131 AD2d 449; Dwyer v Tracey, 105 AD2d 476). Moreover, there is no objective medical documentation to support the plaintiff’s claim of significant limitation of motion or other orthopedic damage, nor is there proof that her alleged injuries were permanent in nature (see, Leschen v Kollarits, 144 AD2d 122; Palmer v Amaker, 141 AD2d 622; Spangenberg v Dombrowski, 114 AD2d 497). Accordingly, the order is reversed and the appellant’s motion for summary judgment is granted. Kunzeman, J. P., Rubin, Eiber and Miller, JJ., concur.