Young v. Russell

[689] In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated May 18, 2004, which granted the defendants’ 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 affirmed, with costs. 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]). In opposition, the plaintiff failed to raise a triable issue of fact as to whether she sustained a serious physical injury. One of the plaintiffs physicians based his affirmation on an examination conducted shortly after the accident in early 2001, while the other physician’s affirmation was based on examinations occurring in March 2001 and September 2002, more than one year before the defendants made their motion. It is well established that any subjective complaints of pain and limitation of motion must be substantiated by verified objective medical findings based on a recent examination of the plaintiff (see Paul v Trerotola, 11 AD3d 441 [2004]; Kauderer v Penta, 261 AD2d 365 [1999]; Carroll v Jennings, 264 AD2d 494 [1999]). Accordingly, the Supreme Court properly granted the defendants’ motion. Florio, J.P., Krausman, Crane, Rivera and Fisher, JJ., concur.