Mahoney v. Zerillo

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Murphy, J.), dated April 23, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed, with costs. The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmation of the plaintiffs physician, submitted in opposition to the defendant’s motion, was based upon an examination conducted shortly after the accident and three years before the motion for summary judgment (see Covington v Cinnirella, 146 AD2d 565 [1989]; also Zuckerman v Karagjozi, 247 AD2d 536 [1998]). This affirmation impermissibly relied upon the unsworn reports of other doctors (see Friedman v U-Haul Truck Rental, 216 AD2d 266 [1995]) and upon the plaintiffs subjective complaints of pain (see Barrett v Howland, 202 AD2d 383 [1994]; LeBrun v Joyner, 195 AD2d 502 [1993]; Coughlan v Donnelly, 172 AD2d 480 [1991]), and failed to take into account the fact that the plaintiff was injured in a subsequent automobile accident (see Dimenshteyn v Caruso, 262 AD2d 348 [1999]). Accordingly, the [404] Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Altman, J.P., Krausman, Goldstein and Mastro, JJ., concur.