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Noh v. Duffe

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 23, 2010

JUSTINE NOH, ET AL., APPELLANTS,
v.
REGINA M. DUFFE, RESPONDENT.

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCarty, J.), entered November 21, 2008, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d), and denied, as academic, their cross-motion for leave to file a note of issue.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J.P., HOWARD MILLER, RUTH C. BALKIN, JOHN M. LEVENTHAL and LEONARD B. AUSTIN, JJ.

(Index No. 9266/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiffs' contentions, the defendant established, prima facie, through the affirmed reports of her expert neurologist, orthopedist, and radiologist, as well as the plaintiffs' deposition testimony, that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Richards v Tyson, 64 AD3d 760; Berson v Rosada Cab Corp., 62 AD3d 636; Byrd v J.R.R. Limo, 61 AD3d 801). The plaintiffs' submissions were insufficient to raise a triable issue of fact, as the plaintiffs' subjective complaints of pain and limitation of motion were unsubstantiated by verified objective medical findings (see Dantini v Cuffie, 59 AD3d 490; Villeda v Cassas, 56 AD3d 762; Ranzie v Abdul-Massih, 28 AD3d 447; Lagana v Shamsian, 270 AD2d 313).

In light of our determination, it is unnecessary to address the plaintiffs' remaining contention.

DILLON, J.P., MILLER, BALKIN, LEVENTHAL and AUSTIN, JJ., concur.

20100223

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