DiNUNZIO v. COUNTY OF SUFFOLK (1998)

In an action, inter alia, to recover damages for personal injuries, the plaintiff in Action No. 1 appeals from (1) an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 26, 1998, which denied her motion for summary judgment on the issue of liability and granted the defendants' cross 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), and (2) a judgment of the same court, dated February 17, 1998, which, upon the order dated January 26, 1998, dismissed the complaint.

ORDERED that the appeal from the order dated January 26, 1998, is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the defendants are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a] [1] ).

The Supreme Court properly granted the respondents' cross motion for summary judgment.   The respondents established prima facie that the appellant in Action No. 1 did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

The appellant's evidence in opposition to the respondents' cross motion was insufficient to raise a triable question of fact on the issue of serious injury.   The Supreme Court properly refused to consider the medical records submitted by the appellant, as they were not in admissible form (see, Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Mobley v. Riportella, 241 A.D.2d 443, 444, 660 N.Y.S.2d 57).   Moreover, although the appellant's chiropractor submitted an affidavit in which he quantified the restrictions in the range of motion which the appellant allegedly suffered, he did not state what, if any, objective medical tests he performed in order to reach his conclusions (see, Merisca v. Alford, 243 A.D.2d 613, 663 N.Y.S.2d 853;  Lincoln v. Johnson, 225 A.D.2d 593, 639 N.Y.S.2d 124;  Giannakis v. Paschilidou, 212 A.D.2d 502, 622 N.Y.S.2d 112;  Antoniou v. Duff, 204 A.D.2d 670, 612 N.Y.S.2d 430).   Moreover, although the appellant submitted an affidavit in which she stated that she has not been able to work since the accident other than for a brief period, she submitted no medical evidence which connected her purported inability to work with her alleged accident-related injuries (see, Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102;  Zelenak v. Clark, 170 A.D.2d 677, 567 N.Y.S.2d 92;  Phillips v. Costa, 160 A.D.2d 855, 554 N.Y.S.2d 288).

Finally, we note that the judgment of the Supreme Court, Suffolk County, dismissed the entire complaint, including the appellant's cause of action to recover for property damage.   The appellant has not contested the dismissal of that cause of action, and thus, we do not reach the issue.

MEMORANDUM BY THE COURT.