Guevara v. Conrad

In an action to recover damages for personal injuries,, the defendant appeals from an order of the Supreme Court, Queens County (Posner, J.), dated December 22, 1998, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

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

The defendant made a prima facie showing of entitlement to judgment as a matter of law. In opposition, the plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law § 5102 (d). He failed to submit an affirmation or affidavit of any of his treating physicians. He did not submit any medical records in admissible form, indicating the treatment, if any, he received for his alleged injuries in the more than two- and one-half year period between the accident and the examination conducted by his expert. The plaintiff’s expert failed to set forth what objective tests she performed in arriving at her conclusions concerning alleged restrictions of the plaintiff’s range of motion (see, Smith v Askew, 264 AD2d 834; Kauderer v Penta, 261 AD2d 365; Grossman v Wright, 268 AD2d 79), and further failed to set forth the treatment, if any, he received for his alleged injuries (see, Bandoian v Bernstein, 254 AD2d 205; Williams v Ciaramella, 250 AD2d 763). Mangano, P. J., Ritter, Joy, McGinity and Smith, JJ., concur.