BURKE v. CARNEY (2007)

 Plaintiff commenced this action seeking damages for injuries she sustained in two automobile accidents that occurred approximately five months apart.   Supreme Court properly granted defendants' respective motions and cross motion for summary judgment dismissing the amended complaint.   Defendants met their burden by establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) under any of the categories of serious injury set forth in her bills of particulars and supplemental bills of particulars, and plaintiff failed to raise an issue of fact to defeat the motions and cross motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Although one of plaintiff's physicians concluded that plaintiff had a disc herniation, that physician failed to establish the extent or degree of the alleged physical limitations resulting from the disc injury (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350-351, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Owen v. Rapid Disposal Serv., 291 A.D.2d 782, 783, 737 N.Y.S.2d 453).   Moreover, the opinion of that physician was based largely on plaintiff's subjective complaints of pain (see Toure, 98 N.Y.2d at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197), and he did not set forth the tests he conducted or their results to support his conclusions concerning the restrictions and limitations resulting from plaintiff's injuries (see Calucci v. Baker, 299 A.D.2d 897, 898, 750 N.Y.S.2d 675;  Wiegand v. Schunck, 294 A.D.2d 839, 840-841, 741 N.Y.S.2d 360).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: