Summary
finding that the plaintiff failed to demonstrate the accident was the proximate cause of a miscarriage occurring within two days to three weeks of the accident
Summary of this case from Fang v. DofarOpinion
Submitted May 12, 1999
June 21, 1999
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Held, J.), dated January 14, 1998, which denied their motion for summary judgment dismissing the complaint.
Jacobowitz, Garfinkel Lesman, New York, N.Y. (Fiedelman McGaw [James K. O'Sullivan] of counsel), for appellants.
LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendants' evidence made out a prima facie case that the plaintiff Reabeh Alslkhadi did not sustain a serious injury within the meaning of Insurance Law § 5102 as a result of the accident of February 15, 1994. In opposition thereto the plaintiffs submitted, inter alia, a hospital record of Alslkhadi dated March 10, 1994, which indicated that she had sustained a "complete abortion" on that date and the affidavit of a physician who reviewed her hospital records and concurred that she had sustained a "complete abortion/miscarriage" three weeks and two days after the accident. While "loss of a fetus" may constitute a serious injury ( see, Insurance Law § 5102[d]), under the circumstances of this case, the plaintiffs' submissions failed to raise a triable issue of fact as to whether the accident constituted a proximate cause of the claimed abortion ( see, Cacaccio v. Martin, 235 A.D.2d 384; Waaland v. Weiss, 228 A.D.2d 435; Lichtman-Williams v. Desmond, 202 A.D.2d 646).