Campbell v Wendt

Campbell v Wendt 2017 NY Slip Op 05510 Decided on July 6, 2017 Appellate Division, First Department 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.

Decided on July 6, 2017
Tom, J.P., Richter, Manzanet-Daniels, Mazzarelli, Gische, JJ.
4411 157639/12

[*1]Frances S. Campbell, Plaintiff-Appellant,

v

Gregory M. Wendt, Defendant-Respondent.

Willkie Farr & Gallagher LLP, New York (Roger D. Netzer of counsel), for appellant.

Adams & Kaplan, Yonkers (Joan A. Reyes of counsel), for respondent.

Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered on or about May 18, 2016, which, to the extent appealed from, granted defendant's motion for summary judgment dismissing the complaint based on plaintiff's inability to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendant met his prima facie burden of showing that plaintiff's claims of pain and headaches did not constitute a serious injury causally related to the 2009 motor vehicle accident. Plaintiff's treating physician's unaffirmed opinion that the accident exacerbated the chronic conditions was insufficient.

To the extent plaintiff's claimed new injury of occipital headaches could constitute a serious injury within the meaning of Insurance Law § 5102(d), plaintiff failed to provide any evidence of such injuries. Nor did her physician compare plaintiff's measured range of motion in her cervical and lumbar spines to a preaccident standard, and thus any claimed deficits "could not be properly assessed to see whether they are significant" (Mirdita v Ash Leasing Inc., 101 AD3d 480, 480 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 6, 2017

CLERK