Delaney v. Rafferty
| Decision Date | 28 July 1997 |
| Citation | 241 A.D.2d 537,663 N.Y.S.2d 834 |
| Parties | , 1997 N.Y. Slip Op. 6995 Ann DELANEY, Respondent, v. Henry RAFFERTY, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Diamond, Paino, Cardo, King & Peters (Corrado & Cifone, Great Neck [Nancy Cifone and Melissa P. Corrado], of counsel), for appellants.
Agoglia, Fassberg, Magee & Crowe, P.C., Mineola (Eileen L. Farrell, of counsel), for respondent.
In a negligence action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Kohn, J.), entered July 6, 1996, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain serious injury as defined by Insurance Law § 5102(d), and granted the plaintiff's cross motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, the defendants' motion is granted, the cross motion is denied as academic, and the complaint is dismissed.
The defendants made a prima facie showing that the plaintiff did not sustain serious injury, as defined by Insurance Law § 5102(d), in the underlying accident (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The plaintiff's evidence failed to raise a triable question of fact on this issue. Without an objectively diagnosed injury, the plaintiff's subjective complaints of pain are insufficient to support a finding of serious injury (see, Lincoln v. Johnson, 225 A.D.2d 593, 639 N.Y.S.2d 124; Barrett v. Howland, 202 A.D.2d 383, 608 N.Y.S.2d 681). The affirmation of the plaintiff's physician was also insufficient to establish the existence of serious injury because he failed to quantify any loss or limitation in the plaintiff's range of motion (see, Wilkins v. Cameron, 214 A.D.2d 557, 558, 625 N.Y.S.2d 66; Stallone v. County of Suffolk, 209 A.D.2d 403, 618 N.Y.S.2d 445; Iglesias v. Inland Freightways, 209 A.D.2d 479, 480, 619 N.Y.S.2d 59). Finally, the physician's conclusory statements that the plaintiff "has sustained a significant limitation of use of a body function or system and a permanent consequential limitation of use of a body organ or member" were clearly tailored to meet the statutory requirements (see, Antorino v. Mordes, 202 A.D.2d 528, 609 N.Y.S.2d 273).
In light of our determination, the plaintiff's cross motion for summary judgment on the issue of liability must be denied as academic....
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