FRANK v. JONES (1999)

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County, (Posner, J.), dated January 26, 1998, which denied their motion for summary judgment on the issue of liability and granted the defendants' cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendants established that the plaintiff Francis Frank did not sustain a serious injury within the meaning of Insurance Law § 5102(d).   The affirmations of two physician experts submitted by the defendants were not sufficiently rebutted by the submissions of the plaintiffs (see, Scheer v. Koubek, 70 N.Y.2d 678, 518 N.Y.S.2d 788, 512 N.E.2d 309;  Lopez v. Senatore, 65 N.Y.2d 1017, 1019, 494 N.Y.S.2d 101, 484 N.E.2d 130;  Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088).   The defendants' experts observed no objective evidence of pain or loss of range of motion.   Moreover, the mild stenosis and disc bulging suffered by the injured plaintiff were found by these experts to be of such a nature that they must have pre-existed the accident.   There was no objective evidence submitted by the plaintiffs linking Mr. Frank's injuries with his absence from work for a two-year period (see, Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102 ).   In addition, the treating chiropractor's affidavit, submitted by the plaintiffs, does not contain any evidence that any of Mr. Frank's symptoms were caused “as a result” of the accident at issue (cf., Pagano v. Kingsbury, 182 A.D.2d 268, 271, 587 N.Y.S.2d 692).

Accordingly, the defendants were entitled to summary judgment (see, Scheer v. Koubek, 70 N.Y.2d 678, 518 N.Y.S.2d 788, 512 N.E.2d 309;  Lopez v. Senatore, 65 N.Y.2d 1017, 1019, 494 N.Y.S.2d 101, 484 N.E.2d 130).

MEMORANDUM BY THE COURT.