MERKEL v. ZHENG FREDERICKS (2000)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 12, 2000, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Wayne Merkel did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendant established a prima facie case that the injuries sustained by the plaintiff Wayne Merkel were not serious (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The defendant submitted an affirmed report of an orthopedic surgeon who examined Mr. Merkel and concluded that there was no objective evidence of any orthopedic disability from the motor vehicle accident.

The only medical evidence that the plaintiffs submitted in opposition to the motion consisted of a report prepared by Dr. Madhu Boppana.   The report failed to present the objective tests employed by Dr. Boppana or the treatment received by the injured plaintiff during the two-year period between the date of the accident and Dr. Boppana's examination.   Thus, the plaintiffs' opposition papers failed to raise a triable issue of fact (see, CPLR 3212 [b] ).

MEMORANDUM BY THE COURT.