Eastman v. Holland

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Fagones, J.), dated July 7, 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. The affirmed report of the defendant’s examining neurologist, as well as the plaintiff’s deposition testimony and the medical records submitted by the defendant, established, prima facie, that the plaintiff did not sustain a serious injury as a matter of law (see Nozine v Sav-On Car Rentals, 15 AD3d 555 [2005]; Sims v Megaris, 15 AD3d 468 [2005]). In opposition, the plaintiff failed to raise a triable issue of fact. The conclusions of her treating physicians were based upon her subjective complaints of pain and limitations, and were unsupported by any objective medical proof (see Burke v Torres, 8 AD3d 118 [2004]; Jockimo v Abess, 304 AD2d 999, 1000 [2003]; Davis v New York City Tr. Auth., 294 AD2d 531, 532 [2002]; Stowell v Safee, 251 AD2d 1026 [1998]). Florio, J.P., Krausman, Crane, Rivera and Fisher, JJ., concur.