SIMS v. MEGARIS


15 A.D.3d 468 (2005)

790 N.Y.S.2d 487

LYNNE A. SIMS, Appellant, et al., Plaintiff v. EVELYN MEGARIS, Respondent.

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

February 14, 2005.


Ordered that the order is affirmed, with costs.

In support of her motion for summary judgment, the defendant submitted a transcript of the deposition testimony of the plaintiff Lynne A. Sims (hereinafter the plaintiff), copies of her medical records, and the affirmed medical report of the defendant's own examining physician. This evidence was sufficient to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [1992]; Fragale v Geiger, 288 A.D.2d 431 [2001]; Hodges v Jones, 238 A.D.2d 962 [1997]; Gleason v Huber, 188 A.D.2d 581 [1992]; Pagano v Kingsbury, 182 A.D.2d 268 [1992]). The evidence submitted by the plaintiff in opposition was insufficient to raise a triable issue of fact. The plaintiff's physician failed to detail any objective medical evidence to support his conclusion that she sustained a significant and consequential limitation of use of her cervical spine (see Kauderer v Penta, 261 A.D.2d 365 [1999]), a conclusion which seemed to have been based solely on the plaintiff's subjective complaints of pain (see Scheer v Koubek, 70 N.Y.2d 678 [1987]; Barrett v Howland, 202 A.D.2d 383 [1994]; LeBrun v Joyner, 195 A.D.2d 502 [1993]; Coughlan v Donnelly, 172 A.D.2d 480 [1991]).

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment.


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