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Berbery v. Yeung

Appellate Division of the Supreme Court of New York, First Department
Jan 15, 2002
290 A.D.2d 293 (N.Y. App. Div. 2002)

Opinion

5853

January 15, 2002.

Order, Supreme Court, New York County (Richard Lowe III, J.), entered October 20, 2000, which, upon reargument, granted defendant's previously denied motion for summary judgment dismissing the complaint on the ground that neither plaintiff had sustained "serious injury" within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

MARK L. HANKIN, for plaintiffs-appellants.

STACY R. SELDIN, for defendant-respondent.

Before: Andrias, J.P., Rosenberger, Lerner, Buckley, Marlow, JJ.


The properly certified and affirmed medical affirmations submitted by defendant, noting the absence of any objective basis for plaintiffs' subjective complaints, were sufficient to meet defendant movant's initial burden to make a prima facie showing that plaintiffs' injuries were not serious within the meaning of the Insurance Law § 5102(d) (see,Gaddy v. Eyler, 79 N.Y.2d 955). By contrast, the medical affirmations submitted by plaintiffs in opposition to defendant's motion were insufficient to rebut defendant's showing. Apart from their formal deficiencies, such affirmations were substantively inadequate for, inter alia, their failure to indicate whether objective tests were performed to confirm plaintiffs' subjective complaints of pain, or to quantify the severity of the limitations of motion purportedly found upon examination (see, Toure v. Avis Rent A Car Sys., 284 A.D.2d 271).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Berbery v. Yeung

Appellate Division of the Supreme Court of New York, First Department
Jan 15, 2002
290 A.D.2d 293 (N.Y. App. Div. 2002)
Case details for

Berbery v. Yeung

Case Details

Full title:ELIAS BERBERY, ET AL., PLAINTIFFS-APPELLANTS v. YIN KUEN YEUNG…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 15, 2002

Citations

290 A.D.2d 293 (N.Y. App. Div. 2002)
735 N.Y.S.2d 775

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