Antorino v. Mordes
| Decision Date | 21 March 1994 |
| Citation | 202 A.D.2d 528,609 N.Y.S.2d 273 |
| Parties | Janet ANTORINO, Appellant, v. Walter MORDES, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Joachim, Flanzig, Frommer & Beasley, Mineola (Cathy S. Harkins, of counsel), for appellant.
Debra A. DiCicco, Brooklyn (Robert Markewich, of counsel), for respondent.
Before THOMPSON, J.P., and ROSENBLATT, RITTER, FRIEDMANN and KRAUSMAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), dated April 14, 1992, which granted the defendant's motion for summary judgment dismissing the complaint due to the plaintiff's failure to establish a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
We agree with the Supreme Court's conclusion that the plaintiff failed to establish a serious injury within the meaning of Insurance Law § 5102(d). The only admissible medical evidence proffered by the plaintiff in opposition to the defendant's motion was an affidavit from her treating physician (see, Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76; Maliadis v. Giaconnelli, 191 A.D.2d 682, 595 N.Y.S.2d 540), which stated that the plaintiff "continued to suffer from persistent pain and restriction of motion in her lower back." To the extent that the plaintiff's physician was simply repeating the plaintiff's own subjective complaints of pain, the affidavit is not sufficient to establish a serious injury (see, Scheer v. Koubek, 70 N.Y.2d 678, 518 N.Y.S.2d 788, 512 N.E.2d 309; Dubois v. Simpson, 182 A.D.2d 993, 582 N.Y.S.2d 561; Cesar v. Felix, 181 A.D.2d 852, 581 N.Y.S.2d 411; Spezia v. De Marco, 173 A.D.2d 462, 570 N.Y.S.2d 87; Bates v. Peeples, 171 A.D.2d 635, 566 N.Y.S.2d 659).
In addition, the physician's assertion that the plaintiff continued to experience restriction of motion in her lower back directly contradicts the same physician's prior finding that the plaintiff's lumbosacral range of motion was "near full" with only "mild tenderness" in the surrounding musculature. It is clear, therefore, that the conclusory assertions of the plaintiff's treating physician were tailored to meet the statutory requirements and are unsupported by any objective medical proof (see, Dubois v. Simpson, supra; Georgia v. Ramautar, 180 A.D.2d 713, 579 N.Y.S.2d 743; Crane v. Richard, 180 A.D.2d 706, 579 N.Y.S.2d 736;...
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