Weinstein v. Saffer

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (DeMaro, J.), dated June 25, 1996, which, upon an order of the same court dated April 12, 1996, granting the defendant’s motion for summary judgment on the ground that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d), dismissed the complaint. Ordered that the judgment is affirmed, with costs. The defendant submitted sufficient proof in admissible form to establish, prima facie, that the plaintiff did not suffer a serious injury in the underlying accident (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The affidavit of the plaintiff’s chiropractor submitted in opposition to the defendant’s motion for summary judgment was insufficient to raise a triable question of fact on this issue because he failed to demonstrate that his diagnoses of the plaintiff’s alleged injuries were based on objective tests (see, Forte v Vaccaro, 175 AD2d 153; Philpotts v Petrovic, 160 AD2d 856, 857). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.