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Welcome v. Diab

Appellate Division of the Supreme Court of New York, Second Department
Jun 19, 2000
273 A.D.2d 377 (N.Y. App. Div. 2000)

Opinion

Submitted March 15, 2000.

June 19, 2000.

In an action to recover damages for personal injuries, the plaintiff Iona Welcome appeals from an order of the Supreme Court, Kings County (R. Goldberg, J.), dated May 7, 1999, which granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted by her.

Rubenstein Rynecki, Brooklyn, N.Y. (Kliopatra Vrontos of counsel), for appellant.

McCabe Collins McGeough Fowler, LLP, Mineola, N.Y. (Patrick M. Murphy of counsel), for respondent.

Before: CORNELIUS J. O'BRIEN, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, LEO F. McGINITY, NANCY E. SMITH, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law (see, Gaddy v. Eyler, 79 N.Y.2d 955). In opposition, the appellant failed to raise an issue of fact as to whether she had sustained a serious injury within the meaning of Insurance Law § 5102(d). While the affirmations of the appellant's treating and examining physicians purported to quantify certain alleged restrictions in her range of motion, they failed to support their determinations with proof of an objectively-diagnosed injury (see, Grossman v. Wright, 268 A.D.2d 79 [2d Dept., May 8, 2000]; Carroll v. Jennings, 264 A.D.2d 494; Kauderer v. Penta, 261 A.D.2d 365; Lobo v. Singh, 259 A.D.2d 523; DiNunzio v. County of Suffolk, 256 A.D.2d 498; Russell v. City of Mount Vernon, 256 A.D.2d 454). In addition, the affirmations do not provide any information concerning the nature of the appellant's medical treatment or any explanation for the over four-year gap between the date of the accident and her subsequent visits to these physicians in November 1998 and March 1999 (see, Perez v. Velez, 253 A.D.2d 865; Stowe v. Simmons, 253 A.D.2d 422; Medina v. Zalmen Reis Assocs., 239 A.D.2d 394).

Furthermore, the appellant's affidavit stating, inter alia, that she was unable to return to work, without competent evidence of a medically-determined injury producing the alleged impairment of her activities, was insufficient to create a triable issue of fact as to her inability to perform substantially all of her daily activities for at least 90 of the first 180 days subsequent to the accident (see, Taylor v. Taylor, 260 A.D.2d 571; Ryan v. Xuda, 243 A.D.2d 457; Yagliyan v. Yang, 241 A.D.2d 518; Orr v. Miner, 220 A.D.2d 567).


Summaries of

Welcome v. Diab

Appellate Division of the Supreme Court of New York, Second Department
Jun 19, 2000
273 A.D.2d 377 (N.Y. App. Div. 2000)
Case details for

Welcome v. Diab

Case Details

Full title:IONA WELCOME, APPELLANT, ET AL., PLAINTIFF, v. MAHMOUD DIAB, RESPONDENT

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

Date published: Jun 19, 2000

Citations

273 A.D.2d 377 (N.Y. App. Div. 2000)
711 N.Y.S.2d 329

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