Burke v. Carney

Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J), entered February 14, 2006 in a personal injury action. The order, insofar as appealed from, granted defendants’ motions and cross motion for summary judgment dismissing the amended complaint. 1108 It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained in two automobile accidents that occurred approximately five months apart. Supreme Court properly granted defendants’ respective motions and cross motion for summary judgment dismissing the amended complaint. Defendants met their burden by establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) under any of the categories of serious injury set forth in her bills of particulars and supplemental bills of particulars, and plaintiff failed to raise an issue of fact to defeat the motions and cross motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Although one of plaintiffs physicians concluded that plaintiff had a disc herniation, that physician failed to establish the extent or degree of the alleged physical limitations resulting from the disc injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]; Owen v Rapid Disposal Serv., 291 AD2d 782, 783-784 [2002]). Moreover, the opinion of that physician was based largely on plaintiffs subjective complaints of pain (see Toure, 98 NY2d at 350), and he did not set forth the tests he conducted or their results to support his conclusions concerning the restrictions and limitations resulting from plaintiffs injuries (see Calucci v Baker, 299 AD2d 897, 898 [2002]; Wiegand v Schunck, 294 AD2d 839, 840-841 [2002]). Present—Hurlbutt, J.E, Martoche, Smith, Fahey and Peradotto, JJ.