Kinchler v. Cruz

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Bergerman, J.), dated October 12, 2004, which granted the defendants’ separate motions 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 one bill of costs. The defendants made prima facie showings, through a copy of the plaintiffs deposition testimony and the affirmed reports of their medical experts, 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]; Batista v Olivo, 17 AD3d 494 [2005]; Grant v Fofana, 10 AD3d 446 [2004]). The affirmation of the plaintiffs physician was insufficient to raise a triable issue of fact, since his diagnosis of tinnitus was based solely upon the plaintiffs subjective complaints (see Congdon v Preisman, 263 AD2d 808 [1999]; cf. Preston v Young, 239 AD2d 729 [1997]). Accordingly, the Supreme Court properly granted the defendants’ separate motions for summary judgment dismissing the complaint. Cozier, J.P., Santucci, Luciano, Fisher and Covello, JJ., concur.