Lisa v. Pastor

• Decision Date: 07 June 1999
• Parties: Dawn LISA, appellant, v. Bella PASTOR, et al., respondents.
• Court: New York Supreme Court — Appellate Division

Page 164

691 N.Y.S.2d 164

Dawn LISA, appellant, v. Bella PASTOR, et al., respondents.

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

June 7, 1999.

Charles DeStefano, Staten Island, N.Y., for appellant.

Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Edward R. Rimmels of counsel), for respondents.

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winick, J.), dated June 16, 1998, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The Supreme Court correctly granted the defendants' motion for summary judgment in the instant case. The defendants established a prima facie showing that the plaintiff did not sustain a serious injury as a result of the underlying accident (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176), thereby shifting the burden to the plaintiff to come forward with sufficient evidence that she sustained a serious injury (see, Licari v. Elliott, 57 N.Y.2d 230, 235, 455 N.Y.S.2d 570, 441 N.E.2d 1088; Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130).

With respect to the plaintiff's alleged back injuries, the affirmed report of her treating physician was insufficient to defeat the defendants' motion, as it was based upon an examination conducted more than three years prior to the defendants' summary judgment motion (see, Schultz v. Von Voight, 216 A.D.2d 451, 628 N.Y.S.2d 388, affd. 86 N.Y.2d 865, 635 N.Y.S.2d 167, 658 N.E.2d 1040; Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102; Philpotts v. Petrovic, 160 A.D.2d 856, 857, 554 N.Y.S.2d 289). Additionally, the plaintiff's physician failed to indicate what, if any, objective tests he had performed in reaching his conclusion (see, Lincoln v. Johnson, 225 A.D.2d 593, 639 N.Y.S.2d 124; Giannakis v. Paschilidou, 212 A.D.2d 502, 622 N.Y.S.2d 112; Antoniou v. Duff, 204 A.D.2d 670, 612 N.Y.S.2d 430).

Furthermore, the plaintiff presented no evidence that she had suffered a "significant disfigurement" within the meaning of Insurance Law § 5102(d) (see, Loiseau v. Maxwell, 256 A.D.2d 450, 682 N.Y.S.2d 74; Koppelmann v. Lepler,...