BIDETTO v. WILLIAMS (2000)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Held, J.), dated January 14, 2000, which, upon an order of the same court, dated November 15, 1999, granting the defendants' motion pursuant to CPLR 4401 to dismiss the complaint at the close of the plaintiffs' case on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

The Supreme Court properly granted the defendants' motion pursuant to CPLR 4401 to dismiss the complaint at the close of the plaintiffs' case.   Upon the evidence presented at trial, there was no rational process by which the trier of fact could have found that the injured plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) (see, Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346;  Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145).   Although the injured plaintiff allegedly suffered injuries to his neck and his back, his evidence was insufficient, as a matter of law, to demonstrate that either of these injuries fell within the statutory definition of serious injury.   His treating physician's conclusion that the injured plaintiff had suffered an injury to his neck was not based upon any objective medical tests (see, McKie v. Hughes, 273 A.D.2d 448, 712 N.Y.S.2d 365;  Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233;  Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405;   Kauderer v. Penta, 261 A.D.2d 365, 689 N.Y.S.2d 190).   Similarly, the testimony of the injured plaintiff's treating physician was insufficient, as a matter of law, to demonstrate that the injured plaintiff suffered a permanent injury to his back.   The treating physician last saw the injured plaintiff more than two years before trial, and her “projections of permanent limitations have no probative value in the absence of a recent examination” (Evans v. Mohammad, 243 A.D.2d 604, 605, 663 N.Y.S.2d 273;  see, Mohamed v. Dhanasar, 273 A.D.2d 451, 711 N.Y.S.2d 733;  Smith v. Askew, supra;  Kauderer v. Penta, supra).

The plaintiffs' remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.