Summary
dismissing plaintiff's Complaint because "the affidavit of plaintiff's chiropractor failed to connect causally plaintiff's alleged injury to the motor vehicle accident"
Summary of this case from Bailey v. IslamOpinion
December 26, 1991
Appeal from the Supreme Court, Oneida County, Shaheen, J.
Present — Denman, P.J., Doerr, Green, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: On September 23, 1986, an automobile operated by plaintiff was struck at the rear by an automobile operated by defendant. Thereafter, plaintiff commenced an action seeking to recover damages for personal injuries allegedly sustained in the accident. After issue was joined, defendant moved for summary judgment. He contended that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d). Plaintiff contends that she sustained a serious injury within the statutory definition because her injury resulted in the "significant limitation of use of a body function or system" and/or a "permanent consequential limitation of use of a body organ or member". We do not agree.
In our view, defendant met his initial burden of demonstrating entitlement to judgment in his favor as a matter of law by the submission of an affirmation of Dr. L.J. Strobino who diagnosed a "mild limitation of motion in the cervical region". Dr. Strobino noted that the injury did not prevent plaintiff from performing her daily activities. Plaintiff resumed her full time employment as a production specialist after an absence of three weeks. His affirmation suggests that plaintiff's "discomfort about the cervical spine" is subjective in nature (see, Costa v Billingsley, 127 A.D.2d 990, 991). Plaintiff's treating physician, Dr. Leroy Cooley, diagnosed plaintiff's condition to be "mildly partially permanently disabled with a chronic cervical strain". The proffered evidence was insufficient to establish that plaintiff's injury resulted in either a "permanent consequential limitation of use of a body organ or member" (see, Kordana v Pomellito, 121 A.D.2d 783, 784, appeal dismissed 68 N.Y.2d 848; Dwyer v Tracey, 105 A.D.2d 476, 478) or a "significant limitation of use of a body function or system" (see, Licari v Elliott, 57 N.Y.2d 230, 236; Bassett v Romano, 126 A.D.2d 693, 694; Zoldas v Louise Cab Corp., 108 A.D.2d 378, 384).
Moreover, the affidavit of plaintiff's chiropractor failed to connect causally plaintiff's alleged injury to the motor vehicle accident of September 23, 1986. Thus, in the circumstances of this case, plaintiff failed to tender evidence in admissible form "`to make a prima facie showing of serious injury sufficient to raise a triable issue of fact'" (Logan v Laidlaw School Tr., 175 A.D.2d 568, 569, quoting Costa v Billingsley, supra, at 991) and defendant's motion must be granted.