Summary
rejecting physicians' characterization of plaintiffs alleged disability as "permanent" where reports were prepared over five years earlier and, accordingly, were not premised upon any recent medical examination of the plaintiff
Summary of this case from Cooper v. DunnOpinion
July 16, 1990
Appeal from the Supreme Court, Kings County (G. Aronin, J.).
Ordered that the order is reversed, on the law, with costs, the motion for summary judgment is granted, and the complaint is dismissed.
A review of the record demonstrates that the plaintiff Patrice Ann O'Neill has failed to establish a prima facie case that she sustained "serious injury" within the meaning of Insurance Law § 5102 (d). While the plaintiffs submitted two medical reports in which the examining physicians characterized her alleged disability as "permanent", these reports were prepared over five years prior to the defendants' motion and, accordingly, were not premised upon any recent medical examination of the plaintiff (see, Covington v. Cinnirella, 146 A.D.2d 565; see also, Philpotts v. Petrovic, 160 A.D.2d 856). Moreover, neither report provides more than a series of conclusory assertions with regard to the plaintiff Patrice Ann O'Neill's alleged "permanent partial disability" (see, Lopez v. Senatore, 65 N.Y.2d 1017, 1019) and neither quantifies with adequate specificity the extent to which her range of movement is allegedly limited (see, Philpotts v Petrovic, supra). Her continuing subjective complaints of occasional or recurrent pain cannot suffice to establish serious injury under the statute (see, Philpotts v. Petrovic, supra; Phillips v. Costa, 160 A.D.2d 855; see also, Scheer v. Koubek, 70 N.Y.2d 678; Konco v. E.T.C. Leasing Corp., 160 A.D.2d 680; Delfino v. Davey, 159 A.D.2d 604). Brown, J.P., Lawrence, Kooper and O'Brien, JJ., concur.