Opinion
April 21, 1994
Appeal from the Supreme Court, Kings County (James H. Shaw, Jr., J.).
In order to effectuate the purpose of no-fault legislation to reduce litigation, a court is required to decide, in the first instance, whether a plaintiff has made out a prima facie case of "serious injury" sufficient to satisfy the statutory requirements (Licari v Elliott, 57 N.Y.2d 230, 237). If the court finds that the evidence would not warrant a jury finding that the injury fits within the statutory definition, the plaintiff has no judicial remedy and the action should be dismissed.
Insurance Law § 5102 (d) defines a serious injury for this purpose as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
In this case, the evidence presented by plaintiff showed that, as a result of whiplash injuries suffered in an automobile accident on February 22, 1989, two medical practitioners diagnosed her as suffering from back pain, one to the extent that she was disabled as of September 1, 1989, the other calling her condition chronic. However, both of these diagnoses were based on plaintiff's subjective complaints of pain, which, standing alone, do not suffice to establish serious injury within the meaning of this statute (Scheer v Koubek, 70 N.Y.2d 678, 679; Philpotts v Petrovic, 160 A.D.2d 856, 857).
We reject plaintiff's attempt to characterize as objective evidence of serious injury the notation in a report submitted by one of her doctors indicating that, one and a half years before the report was written in October, 1991, an orthopedist had found that plaintiff's lumbosacral range of movement was 75% of normal. Even if this notation were competent evidence of the orthopedist's alleged finding, the passage of time between that finding and the report, with no indication of any further examination, follow-up, or course of treatment other than painkillers, renders that evidence inadequate to establish serious injury (see, Philpotts v Petrovic, 160 A.D.2d, supra, at 857; Covington v Cinnirella, 146 A.D.2d 565, 566).
Concur — Sullivan, J.P., Carro, Ellerin, Asch and Tom, JJ.