Lynch v. Lorkowski

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated January 13, 2004, 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. [490] The defendant made a prima facie showing that the plaintiff did not sustain a serious injury by submitting the affirmation of his independent examining medical expert, the plaintiffs deposition transcript, and the records of the plaintiff’s treating physician (see Giordano v Ramos, 2 AD3d 676 [2003]). The affirmation of the plaintiffs medical expert was insufficient to raise a triable issue of fact, as it was based on the plaintiffs subjective complaints of pain (see Giordano v Ramos, supra; Ersop v Variano, 307 AD2d 951, 952 [2003]; Grossman v Wright, 268 AD2d 79, 84 [2000]). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment. Santucci, J.P., Smith, S. Miller, Cozier and Fisher, JJ., concur.