Cennamo v. Themistokleous

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Kelly, J.), dated April 26, 2004, which granted the [701] defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Anna Cennamo did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed, with costs. The defendants’ orthopedist and neurologist examined the injured plaintiff and determined that she had normal mobility and no neurological deficits, that she had no disabilities, and that she was able to fully work and perform her daily activities without any limitations. Together with her deposition testimony, which further demonstrated the lack of a serious injury, this evidence was sufficient to establish the defendants’ prima facie entitlement to summary judgment (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmations of the injured plaintiffs doctors failed to raise a triable issue of fact. The affidavit of her treating chiropractor was based upon the injured plaintiffs subjective complaints of pain (see Kivlan v Acevedo, 17 AD3d 321 [2005]; Barrett v Howland, 202 AD2d 383 [1994]), and the affidavit of her neurologist was based upon one examination made approximately three months after the accident and IV2 years before the defendants moved for summary judgment (see Constantinou v Surinder, 8 AD3d 323 [2004]; Mohamed v Dhanasar, 273 AD2d 451 [2000]). Accordingly, the defendants were entitled to summary judgment dismissing the complaint. Adams, J.P., Ritter, Goldstein, Skelos and Dillon, JJ., concur.