David v. Green

• Decision Date: 25 November 1996
• Citation: 650 N.Y.S.2d 970,233 A.D.2d 476
• Parties: Myrtle A. DAVID, Respondent, v. Roosevelt GREEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 970

650 N.Y.S.2d 970

233 A.D.2d 476

Myrtle A. DAVID, Respondent, v. Roosevelt GREEN, Appellant.

Supreme Court of New York, Appellate Division, Second Department.

Nov. 25, 1996.

Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick and Merril Schapiro Biscone, of counsel; William Heuer, on the brief), for appellant.

Stanley J. Kaufman, Brooklyn (Pollack, Pollack, Isaac & DeCicco [Brian J. Isaac], of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Golar, J.), dated September 26, 1995, which denied his motion for summary judgment dismissing the complaint pursuant to CPLR 3212.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion for summary judgment is granted, and the complaint is dismissed.

The defendant made out a prima facie case that the plaintiff had not sustained a serious injury as defined by Insurance Law § 5102(d). The only competent medical evidence submitted by the plaintiff in opposition to the motion was an affidavit dated August 29, 1995, which was prepared by Dr. Lawrence Shields. This affidavit failed to provide objective evidence of the extent or degree of the plaintiff's alleged limitation and its duration (see, Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102). Dr. Shields' statement in his affidavit that the plaintiff had sustained herniated discs is not supported by any tests performed on the plaintiff subsequent to the subject accident. Indeed, a report based on the Magnetic Resonance Imaging exam that the plaintiff underwent approximately two weeks after the subject accident indicated that there was "no focal herniation".

BRACKEN, J.P., and COPERTINO, JOY, FLORIO and McGINITY, JJ., concur.