Komar
v.
Showers

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, First DepartmentMay 2, 1996
227 A.D.2d 135 (N.Y. App. Div. 1996)
227 A.D.2d 135641 N.Y.S.2d 643

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May 2, 1996

Appeal from the Supreme Court, New York County (Robert Lippmann, J.).


Plaintiffs failed to present a prima facie case of "serious injury" sufficient to satisfy the requirements of Insurance Law § 5102 (d) ( Covington v. Cinnirella, 146 A.D.2d 565; see, Licari v Elliott, 57 N.Y.2d 230). There was no definitive medical evidence that plaintiffs suffered more than sprains or strains as a result of this car accident. Plaintiffs' medical testimony was from physicians who examined plaintiffs more than six years after the accident and they failed to properly introduce any objective evidence of medical treatment or therapy prior to this time. Therefore, there was insufficient evidence to connect plaintiffs' injuries to the accident in question.

We also note that the report of Dr. Dinhoffer was inadmissible. That report does not constitute a business record under CPLR 4518 since it is a medical report and an interpretation of MRI film, as opposed to a day-to-day business entry of a treating physician ( see, Rodriguez v. Zampella, 42 A.D.2d 805). Similarly, Dr. Chynn's reports were properly excluded from evidence.

We have considered plaintiffs' other contentions and find them to be without merit.

Concur — Sullivan, J.P., Ellerin, Rubin, Ross and Nardelli, JJ.