Shaffer v. Merrill , 399 N.Y.S.2d 820 ( 1977 )

Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: In this personal injury action arising from an automobile accident, defendant appeals from a denial of his motion to dismiss the complaint (CPLR 3211, subd [a]) and for summary judgment (CPLR 3212). The issue on appeal concerns whether the plaintiff suffered a "serious injury” as defined in subdivision 4 of section 671 of the Insurance Law, thus permitting her a right of recovery for noneconomic loss which otherwise would be proscribed under subdivision 1 of section 673 of that law. We agree with Special Term’s determination that plaintiff’s medical expenses do not meet the $500 threshold required to support an action for noneconomic loss (Insurance Law, § 671, subd 4, par [b]). Plaintiff’s bill of particulars alleges total medical expenses in the sum of $679.75, of which $510, according to her physician’s bill for services, represents charges for physiotherapy treatments which may not be included in the computation (Colenzo v Kernan, 49 AD2d 809). We reject Special Term’s finding, however, that the back injury of which plaintiff complains satisfies the statutory requirement. In that connection "Serious injury” is defined as a personal injury "which results in death; dismemberment; significant disfigurement; a compound or comminuted fracture; or permanent loss of use of a body organ, member, function or system” (Insurance Law, § 671, subd 4, par [a]). The medical report of plaintiff’s doctor specifically asserts "that with the passage of time her symptoms will entirely disappear and there will be no permanency”. Defendant properly relies upon the prognosis rendered by plaintiffs physician, and plaintiff has made no showing that her injuries are otherwise more serious. Thus she has no right of recovery for noneconomic loss (Insurance Law, § 673, subd 1). (Appeal from order of Livingston Supreme Court—summary judgment.) Present—Moule, J. P., Cardámone, Simons and Dillon, JJ.