CARROLL v. JENNINGS (1999)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Lonschein, J.), dated September 8, 1998, which denied their motion for summary judgment dismissing the complaint on the ground that none of the three plaintiffs sustained 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 in its entirety.

The three plaintiffs commenced the instant action to recover damages for personal injuries which each allegedly sustained in a two-vehicle collision.   The defendants moved for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).   The Supreme Court denied the motion.   We reverse.

 The defendants submitted sufficient evidence in support of their motion to establish, as a matter of law, that none of the plaintiffs sustained a serious injury (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   Thus, the burden shifted to plaintiffs to come forward with sufficient evidence to raise a triable issue of fact that they each sustained a serious injury (see, Gaddy v. Eyler, supra, at 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Licari v. Elliott, 57 N.Y.2d 230, 235, 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).

 The plaintiffs' evidence was insufficient for this purpose.   In opposition to the motion, each plaintiff submitted an affidavit by Dr. David Levine, their treating chiropractor.   Although he indicated that each plaintiff demonstrated positive findings on straight leg-raising tests, which this court has indicated can be objective evidence of serious injury (see, Kim v. Cohen, 208 A.D.2d 807, 618 N.Y.S.2d 386;  Risbrook v. Coronamos Cab Corp., 244 A.D.2d 397, 664 N.Y.S.2d 75), Dr. Levine failed to explain the significance of these test results and relate them to the plaintiffs' injuries.   In addition, neither Dr. Levine nor the plaintiffs offered any explanation for the almost four-year gap between the time that he stopped treating them in August 1994 and his examination of them in July 1998 in response to the defendants' summary judgment motion (see, Stowe v. Simmons, 253 A.D.2d 422, 676 N.Y.S.2d 638;  Rum v. Pam Transp., 250 A.D.2d 751, 673 N.Y.S.2d 178;  Williams v. Ciaramella, 250 A.D.2d 763, 673 N.Y.S.2d 186).   Moreover, Dr. Levine's conclusory statements simply mirrored the statutory language, and were insufficient to defeat the defendants' prima facie showing (see, Lopez v. Senatore, 65 N.Y.2d 1017, 1019, 494 N.Y.S.2d 101, 484 N.E.2d 130;  Antorino v. Mordes, 202 A.D.2d 528, 609 N.Y.S.2d 273).

 Finally, without an objectively-diagnosed injury, the plaintiffs' subjective complaints of pain are insufficient to support a finding of serious injury (see, Lincoln v. Johnson, 225 A.D.2d 593, 639 N.Y.S.2d 124;  Barrett v. Howland, 202 A.D.2d 383, 608 N.Y.S.2d 681).

MEMORANDUM BY THE COURT.