Opinion
January 16, 1990
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Ordered that the order is affirmed, with costs.
The defendants were granted partial summary judgment on the ground that the evidence was insufficient to raise a triable issue of fact as to whether the plaintiff Elizabeth Christianson suffered a "serious injury" within the meaning of Insurance Law § 5102 (d). The court has the duty in the first instance to decide whether a plaintiff has established a prima facie case of serious injury within the meaning of Insurance Law § 5102 (d) (see, Licari v. Elliot, 57 N.Y.2d 230, 237). At bar, the record shows that Mrs. Christianson's symptoms have subsided, and the discomfort in her neck and back was described by her orthopedist as "mild to moderate." She also told her neurosurgeon that her symptoms were "intermittent and at times she is pain free". The neurosurgeon's examination of Mrs. Christianson did not reveal any serious symptoms. Under these circumstances, the dismissal of the first and second causes of action was proper (see, Scheer v Koubek, 70 N.Y.2d 678; McLiverty v. Urban, 131 A.D.2d 449; Songer v. Henry W. Muthig, Inc., 131 A.D.2d 657; Caiazzo v. Crespi, 124 A.D.2d 623). Mollen, P.J., Bracken, Brown and Rosenblatt, JJ., concur.