CALDERON v. ELSENREICH (2000)

In an action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Queens County (Schmidt, J.), dated April 8, 1999, as denied that branch of his motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Luz Dary Calderon on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Luz Dary Calderon is granted, and the complaint is dismissed insofar as asserted by the plaintiff Luz Dary Calderon.

The Supreme Court improperly denied that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Luz Dary Calderon.   The defendant established a prima facie case that Calderon 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), thereby shifting the burden to her to raise a triable question of fact on that issue (see, Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130).   Calderon failed to meet this burden.

The affidavit of Calderon's examining chiropractor, dated almost three years after the accident, indicated that she suffered from a limitation of range of motion in her lumbar spine which was causally related to the instant accident.   However, the affidavit failed to describe how the injury could be causally related to the accident when an examination by the same chiropractor, conducted just a few weeks after the accident, failed to reveal any range of motion limitations in the plaintiff's lumbar spine.   The affidavit consisted of nothing more than “conclusory assertions tailored to meet statutory requirements” (Medina v. Zalmen Reis & Assocs., 239 A.D.2d 394, 395, 658 N.Y.S.2d 36, quoting Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130;  Castano v. Synergy Gas Corp., 250 A.D.2d 640, 672 N.Y.S.2d 417;  Antorino v. Mordes, 202 A.D.2d 528, 609 N.Y.S.2d 273).   Accordingly, that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by Calderon should have been granted.

MEMORANDUM BY THE COURT.