Spence v. Mikelberg

Summary

The Appellate Division, Second Department, affirmed an order granting the defendant summary judgment in a personal-injury action. The court held that the plaintiff failed to raise a triable issue of fact concerning a serious injury under Insurance Law § 5102(d), because her medical evidence lacked objective testing and her affidavit was insufficient.

Holdings

1. Summary judgment dismissing the complaint was proper because the defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the plaintiff failed to raise a triable issue of fact.
2. The treating orthopedist's affirmation did not raise a triable issue because it reported limitations without setting forth objective testing performed to reach those conclusions.
3. The plaintiff failed to submit competent medical evidence demonstrating that the alleged injuries prevented her from performing substantially all of her usual and customary daily activities for at least 90 of the first 180 days after the accident.

Questions Presented

1. Whether the defendant established prima facie entitlement to summary judgment by showing that the plaintiff did not sustain a serious injury under Insurance Law § 5102(d).
2. Whether the plaintiff's treating orthopedist's affirmation and the plaintiff's affidavit raised a triable issue of fact concerning serious injury.
3. Whether the plaintiff submitted competent medical evidence showing inability to perform substantially all usual and customary daily activities for at least 90 of the first 180 days after the accident.

Disposition

affirmed