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O'Neill v. Rogers

Appellate Division of the Supreme Court of New York, Second Department
Jul 16, 1990
163 A.D.2d 466 (N.Y. App. Div. 1990)

Summary

rejecting physicians' characterization of plaintiffs alleged disability as "permanent" where reports were prepared over five years earlier and, accordingly, were not premised upon any recent medical examination of the plaintiff

Summary of this case from Cooper v. Dunn

Opinion

July 16, 1990

Appeal from the Supreme Court, Kings County (G. Aronin, J.).


Ordered that the order is reversed, on the law, with costs, the motion for summary judgment is granted, and the complaint is dismissed.

A review of the record demonstrates that the plaintiff Patrice Ann O'Neill has failed to establish a prima facie case that she sustained "serious injury" within the meaning of Insurance Law § 5102 (d). While the plaintiffs submitted two medical reports in which the examining physicians characterized her alleged disability as "permanent", these reports were prepared over five years prior to the defendants' motion and, accordingly, were not premised upon any recent medical examination of the plaintiff (see, Covington v. Cinnirella, 146 A.D.2d 565; see also, Philpotts v. Petrovic, 160 A.D.2d 856). Moreover, neither report provides more than a series of conclusory assertions with regard to the plaintiff Patrice Ann O'Neill's alleged "permanent partial disability" (see, Lopez v. Senatore, 65 N.Y.2d 1017, 1019) and neither quantifies with adequate specificity the extent to which her range of movement is allegedly limited (see, Philpotts v Petrovic, supra). Her continuing subjective complaints of occasional or recurrent pain cannot suffice to establish serious injury under the statute (see, Philpotts v. Petrovic, supra; Phillips v. Costa, 160 A.D.2d 855; see also, Scheer v. Koubek, 70 N.Y.2d 678; Konco v. E.T.C. Leasing Corp., 160 A.D.2d 680; Delfino v. Davey, 159 A.D.2d 604). Brown, J.P., Lawrence, Kooper and O'Brien, JJ., concur.


Summaries of

O'Neill v. Rogers

Appellate Division of the Supreme Court of New York, Second Department
Jul 16, 1990
163 A.D.2d 466 (N.Y. App. Div. 1990)

rejecting physicians' characterization of plaintiffs alleged disability as "permanent" where reports were prepared over five years earlier and, accordingly, were not premised upon any recent medical examination of the plaintiff

Summary of this case from Cooper v. Dunn
Case details for

O'Neill v. Rogers

Case Details

Full title:PATRICE A. O'NEILL et al., Respondents, v. JOHN ROGERS et al., Appellants

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

Date published: Jul 16, 1990

Citations

163 A.D.2d 466 (N.Y. App. Div. 1990)
559 N.Y.S.2d 669

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