| Smith v Cherubini |
| 2007 NY Slip Op 07925 [44 AD3d 520] |
| October 23, 2007 |
| Appellate Division, First Department |
| Maria Smith, Appellant, v Dana M. Cherubini,Respondent. |
—[*1] Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck (Elizabeth M. Hecht of counsel), forrespondent.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered on or about July 3,2006, which granted defendant's motion to set aside a $320,000 jury verdict rendered inplaintiff's favor and dismissed the action, unanimously affirmed, without costs.
Plaintiff failed to show that she suffered a "serious injury" within the meaning of InsuranceLaw § 5102 (d) (see Licari v Elliott, 57 NY2d 230 [1982]). She alleged multipleinjuries, including migraine headaches and bulging and herniated cervical and lumbosacral discs.The evidence showed a preexisting history of migraines, and prior and subsequent accidents.
Plaintiff's medical expert failed to explain or address how the intervening accidents andhistory of progressively worsening migraines were not the cause of her complaints, and failed totestify as to any current, causally related limitation experienced by plaintiff (see Thompson v Abbasi, 15 AD3d95 [2005]). The expert also failed to identify any objective basis for the percentagesattributed to the restricted ranges of motion, and did not objectively relate the MRI findings toplaintiff's current complaints (see Taylorv Terrigno, 27 AD3d 316 [2006]). Concur—Lippman, P.J., Andrias, Williams,Buckley and Malone, JJ.