LeBRUN v. JOYNER


195 A.D.2d 502 (1993)

600 N.Y.S.2d 262

Natasha LeBrun et al., Appellants, v. Tracey Joyner et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 12, 1993


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 "continu[ing] 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 A.D.2d 268; see also, Gleason v Huber, 188 A.D.2d 581; Rhind v Naylor, 187 A.D.2d 498; Hochlerin v Tolins, 186 A.D.2d 538; Jacondino v Lovis, 186 A.D.2d 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 N.Y.2d 678; McHaffie v Antieri, 190 A.D.2d 780; Duryea v Zung, 185 A.D.2d 912; Tipping-Cestari v Kilhenny, 174 A.D.2d 663).


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