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Antorino v. Mordes

Appellate Division of the Supreme Court of New York, Second Department
Mar 21, 1994
609 N.Y.S.2d 273 (N.Y. App. Div. 1994)

Opinion

March 21, 1994

Appeal from the Supreme Court, Suffolk County (Gowan, J.).


Ordered that the order is affirmed, with costs.

We agree with the Supreme Court's conclusion that the plaintiff failed to establish a serious injury within the meaning of Insurance Law § 5102 (d). The only admissible medical evidence proffered by the plaintiff in opposition to the defendant's motion was an affidavit from her treating physician (see, Grasso v. Angerami, 79 N.Y.2d 813; Maliadis v. Giaconnelli, 191 A.D.2d 682), which stated that the plaintiff "continued to suffer from persistent pain and restriction of motion in her lower back." To the extent that the plaintiff's physician was simply repeating the plaintiff's own subjective complaints of pain, the affidavit is not sufficient to establish a serious injury (see, Scheer v Koubek, 70 N.Y.2d 678; Dubois v. Simpson, 182 A.D.2d 993; Cesar v Felix, 181 A.D.2d 852; Spezia v. De Marco, 173 A.D.2d 462; Bates v Peeples, 171 A.D.2d 635).

In addition, the physician's assertion that the plaintiff continued to experience restriction of motion in her lower back directly contradicts the same physician's prior finding that the plaintiff's lumbosacral range of motion was "near full" with only "mild tenderness" in the surrounding musculature. It is clear, therefore, that the conclusory assertions of the plaintiff's treating physician were tailored to meet the statutory requirements and are unsupported by any objective medical proof (see, Dubois v. Simpson, supra; Georgia v. Ramautar, 180 A.D.2d 713; Crane v. Richard, 180 A.D.2d 706; Adolphe v. Ramirez, 173 A.D.2d 583). As such, they fail to establish a serious injury within the meaning of Insurance Law § 5102 (d). Thompson, J.P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.


Summaries of

Antorino v. Mordes

Appellate Division of the Supreme Court of New York, Second Department
Mar 21, 1994
609 N.Y.S.2d 273 (N.Y. App. Div. 1994)
Case details for

Antorino v. Mordes

Case Details

Full title:JANET ANTORINO, Appellant, v. WALTER MORDES, Respondent

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

Date published: Mar 21, 1994

Citations

609 N.Y.S.2d 273 (N.Y. App. Div. 1994)
609 N.Y.S.2d 273

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