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176 A.D.2d 921

Keller v. Terr

Appellate Division of the Supreme Court of the State of New York · decided 1991-10-28

Cited by 2 later decisions — most recently June 1993

2 state decisions

Key passage — most relied on by later courts

“Plaintiff seeks to recover on the theory that she sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury. However, plaintiffs complaints are entirely subjective and are unsupported by any competent medical evidence that plaintiff sustained injuries which confined her to bed and prevented her from carrying on her customary activities.... The subjective complaints of the plaintiff without medical foundation are insufficient to establish a prima facie case of serious injury within the meaning of the Insurance Law”

quoted by 1 later decision, including 268 N.J. Super. 186 - Amaechi v. Clark

“The plaintiff saw two doctors during the six-month period following the automobile accident from which this complaint arises. One of these doctors, a neurologist, testified that his only knowledge of the plaintiffs disability during that period was based on what the plaintiffs attorney told him. The second, a dentist, testified that he examined the plaintiff, finding spasms and inflammation of the jaw. The testimony of the dentist, however, failed to establish that the plaintiff was curtailed from performing her usual activities to a great extent.... As a result, the plaintiff failed to make a prima facie case showing serious injury within the statutory requirements.”

quoted by 1 later decision, including 268 N.J. Super. 186 - Amaechi v. Clark

Good law ✅— No negative treatment on recordhow we know

Decided 1991-10-28

View the full empirical analysis of this case →

¶1— In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Nassau County (Murphy, J.), entered November 1, 1989, which, upon a ruling granting the plaintiff judgment as a matter of law on the issue of liability, and which, upon a jury verdict, found that the plaintiff sustained serious injury of a nonpermanent nature and that she suffered damages in the amount of $50,000, is in favor of the plaintiff and against them in the principal sum of $50,000.

¶2Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed.

¶3On appeal, the defendants contend, inter alia, that the plaintiff failed to make a prima facie showing of serious injury, and that, as a result, the complaint should be dismissed. The issue of whether the plaintiff has made a prima facie showing of having sustained a serious injury is one for the court in the first instance (see, Licari v Elliott, 57 NY2d 230, 237). We find that the Supreme Court incorrectly determined that the plaintiff satisfied the requirements of Insurance Law § 5102 (d) and § 5104 (a), since the record fails to demonstrate that the plaintiff suffered from a medically-determined injury which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for at least 90 of the 180 days following the occurrence of the alleged injuries.

¶4The plaintiff saw two doctors during the six-month period following the automobile accident from which this complaint arises. One of these doctors, a neurologist, testified that his only knowledge of the plaintiff’s disability during that period was based on what the plaintiff’s attorney told him. The second, a dentist, testified that he examined the plaintiff, finding spasms and inflammation of the jaw. The testimony of the dentist, however, failed to establish that the plaintiff was curtailed from performing her usual activities to a great extent (see, Insurance Law § 5102 [d]; Licari v Elliott, supra).The plaintiff’s third expert witness a chiropractor, testified that he was unable to determine what the plaintiff’s disability would have been during the six-month period following the occurrence of the alleged injuries, since he did not examine the witness until two years later. As a result, the plaintiff failed to make a prima facie case showing serious injury within the statutory requirements (see, Insurance Law § 5102 [d]; see also, Waldman v Dong Kook Chang, 175 AD2d 204). *922Accordingly, we reverse the judgment, and dismiss the complaint (see, Insurance Law § 5104 [a]).

¶5In light of our determination, we decline to address the defendants’ remaining contentions. Bracken, J. P., Harwood, Eiber and Rosenblatt, JJ., concur.

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