Villalta v. Schechter

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered December 17, 1998, which denied her 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 met her initial burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting affirmed reports of a neurologist and an orthopedic surgeon which indicated that the plaintiff did not suffer any serious injury as a result of the subject accident. Specifically, the doctors stated that the objective tests performed during their examination of the plaintiff revealed that he had a “normal range of motion.”

In opposition, the plaintiff failed to submit sufficient evidence to raise a triable issue of fact with regard to whether he sustained a serious injury as a result of the accident. The sworn report of the plaintiffs treating chiropractor failed to explain the objective tests which were performed to support his conclusion that the plaintiff suffered restricted range of motion (see, Grossman v Wright, 268 AD2d 79). Instead, the chiropractor’s conclusions appear to be based upon the plaintiffs subjective complaints of pain, which are insufficient to defeat the motion (see, Delaney v Rafferty, 241 AD2d 537; Lincoln v Johnson, 225 AD2d 593). Although the plaintiffs chiropractor indicated that the plaintiff suffered from a bulging disc, he never stated, contrary to the dissent’s conclusion, that this condition was causally related to the accident (see, Lalli v Tamasi, 266 AD2d 266; Verrelli v Tronolone, 230 AD2d 789). Additionally, neither the plaintiff nor his chiropractor sufficiently explained the almost four-year gap between the plaintiffs last treatment and his most recent examination (see, Dimenshteyn v Caruso, 262 AD2d 348). Finally, the plaintiff failed to present sufficient evidence to establish that he was prevented from performing substantially all of his usual activities for at least 90 of the 180 days following the accident (see, Curry v Velez, 243 AD2d 442).

Accordingly, the Supreme Court erred in denying the defendant’s motion for summary judgment. O’Brien, J. P., Sullivan and Feuerstein, JJ., concur.

Goldstein, J., dissents and votes to affirm the order appealed from, with the following memorandum in which Luciano, J., concurs.