Summary
holding that the defendants established their entitlement to judgment as a matter of law where hospital records indicated that the plaintiff sustained no fractures, dislocations, or spinal injuries and the plaintiff failed to raise an issue of fact
Summary of this case from A.H. v. Precision Indus. Maint. Inc.Opinion
March 29, 1999
Appeal from the Supreme Court, Queens County (Schmidt, J.).
Ordered that the order is affirmed, with costs.
We agree with the Supreme Court that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Hawkins v. Montero, 250 A.D.2d 813; Medina v. Zalmen Reis Assocs., 239 A.D.2d 394).
The hospital emergency room records indicate that the plaintiff sustained no fractures, dislocations, or spinal injuries, and that he was discharged the day of the accident with a diagnosis consisting solely of "strains". Moreover, it is undisputed that the plaintiff sought no treatment for a period of some two years after the accident, which occurred in September 1995.
In opposition to the defendants' motions, the plaintiff submitted the affidavit of a chiropractor which was based on an examination conducted approximately two years after the accident occurred. The affidavit identified a series of soft tissue injuries, but did not indicate that any objective testing procedures were conducted in conjunction with the examination (see, Duryea v. Zung, 185 A.D.2d 912). Further, the affidavit contained no statement that the chiropractor ever treated the plaintiff, mentioned no ongoing or prior history of treatment by any other health care provider, and did not provide any explanation for the two-year gap between the plaintiff's emergency room treatment and the examination (see, Dyagi v. Newburgh Auto Auction, 251 A.D.2d 619; Medina v. Zalmen Reis Assocs., supra, at 394-395).
Since the defendants established their entitlement to judgment as a matter of law, and the plaintiff's submissions failed to raise an issue of fact that he had sustained a serious injury, the court properly granted the defendants' motions to dismiss the complaint (see, Licari v. Elliott, 57 N.Y.2d 230; Stipes v. Kopf, 255 A.D.2d 502).
Bracken, J. P., Thompson, Goldstein and McGinity, JJ., concur.