VARGHESE v. EHRET (2003)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Rockland County (Nelson, J.), dated September 24, 2002, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendant established a prima facie case that the plaintiff did not sustain a serious injury through the affirmed reports of two neurologists and an orthopedist, who examined the plaintiff and concluded that the results of the examination were normal (see Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In addition, a magnetic resonance image taken on December 16, 2000, approximately three months after the accident, indicated that the plaintiff had not sustained a herniated disc.

The medical findings of the plaintiff's medical expert were not based on a recent examination (see Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233).   Accordingly, the plaintiff failed to raise a triable issue of fact (see Grossman v. Wright, supra ).