Giordano v. Ramos

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated January 13, 2003, which denied [677] their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. Through the affirmations of their medical experts, the plaintiffs EBT testimony, and the records of the plaintiffs treating physicians, the defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmation of the plaintiffs expert, who first examined the plaintiff after the defendants moved for summary judgment, was based upon subjective complaints of pain and speculation. Thus, it was insufficient to raise a triable issue of fact (see Trotter v Hart, 285 AD2d 772 [2001]; Cabri v Myung-Soo Park, 260 AD2d 525 [1999]; Williams v Ciaramella, 250 AD2d 763 [1998]; Medina v Zalmen Reis & Assoc., 239 AD2d 394 [1997]; Waldman v Dong Kook Chang, 175 AD2d 204 [1991]). Accordingly, the defendants were entitled to summary judgment dismissing the complaint. Altman, J.P., S. Miller, McGinity, Adams and Mastro, JJ., concur.