LeBrun v. Joyner

In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Queens County (Leviss, J.), dated August 15, 1991, which granted the motion of the defendant Marie LeBrun for summary judgment on the ground the infant plaintiff did not suffer a serious injury, and dismissed the complaint. Ordered that the order is affirmed, with costs. The evidence in the record includes two unsworn medical reports signed by Dr. David Eisenberg, one dated June 20, 1989, and one dated March 7, 1991. The infant plaintiff was referred to Dr. Eisenberg by her attorney. Both of these reports indicate that the infant plaintiff was experiencing "no abnormalities” of coordination station or gait. The earlier report indicates that the infant plaintiff was "not getting headaches at this time” and that she was "functioning well in school”. The later report states that the infant plaintiff was "continuing] to have some headaches”. These unsworn medical reports, having been executed by the infant plaintiff’s own doctor, constitute competent proof of the absence of a "serious injury” (see, Insurance Law § 5102 [d]; Pagano v Kingsbury, 182 AD2d 268; see also, Gleason v Huber, 188 AD2d 581; Rhind v Naylor, 187 AD2d 498; Hochlerin v Tolins, 186 AD2d 538; Jacondino v Lovis, 186 AD2d 109). Nothing in these reports, or elsewhere in the record, demonstrates the existence of an issue of fact as to whether the infant plaintiff in fact suffered such an injury. The infant plaintiff’s claims of lower back pain, intermittent pain in her knees, and continuous headaches, are palpably insufficient to demonstrate such an issue of fact (see, e.g, Scheer v Koubek, 70 NY2d 678; McHaffie v Antieri, 190 AD2d 780; Duryea v Zung, 185 AD2d 912; Tipping-Cestari v Kilkenny, 174 AD2d 663). Bracken, J. P., Balletta, O’Brien and Copertino, JJ., concur.