HICKLIN v. LaDUCA (2000)

Supreme Court properly granted defendants' motions for a directed verdict at the close of proof on the ground that plaintiff failed to establish a prima facie case of serious injury within the meaning of Insurance Law § 5102(d).   Plaintiff's treating orthopedist testified that plaintiff did not sustain the injuries set forth in plaintiff's initial bill of particulars, and that the injury specified in plaintiff's supplemental bill of particulars was not caused by the accident.   Plaintiff's case thus was based entirely on plaintiff's subjective complaints of pain and limitation, which are insufficient to establish serious injury (see, Scheer v. Koubek, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788, 512 N.E.2d 309;  Mohamed v. Dhanasar, 273 A.D.2d 451, 711 N.Y.S.2d 733), and on the testimony of plaintiff's treating family practitioner, who failed to establish the extent of plaintiff's disability or relate it to the accident (see, Latiuk v. Cona, 272 A.D.2d 988, 708 N.Y.S.2d 531;  Lichtman-Williams v. Desmond, 202 A.D.2d 646, 646-647, 609 N.Y.S.2d 296, lv. dismissed 84 N.Y.2d 849, 617 N.Y.S.2d 138, 641 N.E.2d 159).   The court did not err in restricting the testimony of plaintiff's family practitioner as a consequence of plaintiff's failure to make required disclosures.   We have considered plaintiff's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed without costs.

MEMORANDUM: