SMITH v. CHERUBINI (2007)

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered on or about July 3, 2006, which granted defendant's motion to set aside a $320,000 jury verdict rendered in plaintiff's favor and dismissed the action, unanimously affirmed, without costs.

Plaintiff failed to show that she suffered a “serious injury” within the meaning of Insurance Law § 5102(d) (see Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982] ).   She alleged multiple injuries, including migraine headaches and bulging and herniated cervical and lumbosacral discs.   The evidence showed a pre-existing history of migraines, and prior and subsequent accidents.

Plaintiff's medical expert failed to explain or address how the intervening accidents and history of progressively worsening migraines were not the cause of her complaints, and failed to testify as to any current, causally related limitation experienced by plaintiff (see Thompson v. Abbasi, 15 A.D.3d 95, 788 N.Y.S.2d 48 [2005] ).   The expert also failed to identify any objective basis for the percentages attributed to the restricted ranges of motion, and did not objectively relate the MRI findings to plaintiff's current complaints (see Taylor v. Terrigno, 27 A.D.3d 316, 812 N.Y.S.2d 50 [2006] ).