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Eldred v. Stoddard

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 14, 1995
217 A.D.2d 952 (N.Y. App. Div. 1995)

Opinion

July 14, 1995

Appeal from the Supreme Court, Steuben County, Scudder, J.

Present — Denman, P.J., Pine, Callahan, Doerr and Balio, JJ.


Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Defendants sustained their burden of establishing prima facie that Sondra Eldred (plaintiff) did not sustain a serious injury. The burden thus shifted to plaintiff to come forward with evidence that she suffered a serious injury within one of several categories enumerated in the statute (see, Insurance Law § 5102 [d]; Shames v. Murtha, 204 A.D.2d 841). Plaintiff failed to sustain her burden of making "`a prima facie showing of serious injury sufficient to raise a triable issue of fact'" (Logan v. Laidlaw School Tr., 175 A.D.2d 568, 569) with respect to "medically determined injury or impairment of a non-permanent nature which prevents [her] from performing substantially all of the material acts which constitute [her] usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102 [d]). Nor did plaintiff offer proof that she suffered a "significant limitation of use of a body function or system" (Insurance Law § 5102 [d]). The opinion of plaintiff's physician that plaintiff suffers from chronic pain syndrome is based upon plaintiff's subjective complaints of pain and is unsupported by any objective medical evidence (see, Logan v Laidlaw School Tr., supra). The physician's affidavit, which appears to have been tailored to meet statutory requirements, was not sufficient to establish a serious injury (see, Antorino v Mordes, 202 A.D.2d 528; Dubois v. Simpson, 182 A.D.2d 993).


Summaries of

Eldred v. Stoddard

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 14, 1995
217 A.D.2d 952 (N.Y. App. Div. 1995)
Case details for

Eldred v. Stoddard

Case Details

Full title:SONDRA ELDRED et al., Respondents, v. MATTHEW L. STODDARD et al.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jul 14, 1995

Citations

217 A.D.2d 952 (N.Y. App. Div. 1995)
630 N.Y.S.2d 171

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