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Rossi v. Dwyer

Appellate Division of the Supreme Court of New York, Second Department
Nov 26, 2001
288 A.D.2d 457 (N.Y. App. Div. 2001)

Opinion

2001-05025

Submitted October 31, 2001.

November 26, 2001.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Dunn, J.), entered May 18, 2001, which denied their motion for summary judgment dismissing the complaint on the ground that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law — 5102(d).

Gallacher, Kushel and Horvat, Riverhead, N.Y. (David M. Reilly of counsel), for appellants.

Joachim, Flanzig, Frommer, Flanzig Cerrato, Mineola, N Y (Daniel Flanzig of counsel), for respondents.

Before: CORNELIUS J. O'BRIEN, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.


ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants made a prima facie showing of entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the infant plaintiff sustained a serious injury within the meaning of Insurance Law — 5102(d). A physician's affirmation, which was the only competent medical evidence submitted in opposition to the motion, failed to set forth the objective tests he performed in reaching his conclusions concerning restrictions in the infant plaintiff's range of motion (see, Goldin v. Lee, 275 A.D.2d 341; Grossman v. Wright, 268 A.D.2d 79, 84; Smith v. Askew, 264 A.D.2d 834; Kauderer v. Penta, 261 A.D.2d 365). Furthermore, the affirmation failed to adequately explain either the lapse of time between the cessation of the infant plaintiff's medical treatment and the physical examination conducted by her own expert, or the gaps in time between physical therapy treatments (see, Grossman v. Wright, supra; Smith v. Askew, supra; Medina v. Zalman Reis Assoc., 239 A.D.2d 394).

O'BRIEN, J.P., S. MILLER, McGINITY, SCHMIDT and TOWNES, JJ., concur.


Summaries of

Rossi v. Dwyer

Appellate Division of the Supreme Court of New York, Second Department
Nov 26, 2001
288 A.D.2d 457 (N.Y. App. Div. 2001)
Case details for

Rossi v. Dwyer

Case Details

Full title:LAUREN A. ROSSI, ETC., ET AL., respondents, v. ALFRED K. DWYER, ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 26, 2001

Citations

288 A.D.2d 457 (N.Y. App. Div. 2001)
733 N.Y.S.2d 491

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