Zaccara v. Goff

In a negligence action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Dounias, J.), dated June 7, 1988, as, upon reargument, adhered to its original determination in an order of the same court dated February 5, 1988, granting the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed insofar as appealed from, with costs. It is incumbent upon the court to decide in the first instance whether a plaintiff has made out a prima facie case of serious injury sufficient to satisfy the statutory requirements (see, [639] Insurance Law § 5102 [d]; Licari v Elliott, 57 NY2d 230). In the instant case, the plaintiff has submitted an affidavit which merely makes conclusory statements of subjective pain and which does not indicate how his usual and customary activities were prevented by his injuries (see, Padron v Hood, 124 AD2d 718). The medical reports submitted by the plaintiff do not indicate that they are based upon a recent examination of him nor that the physicians were aware of the plaintiff’s current condition (see, Covington v Cinnirella, 146 AD2d 565). Indeed, it is noted that such reports are over five years old. The reports do not set forth any specific course of treatment or indicate that any limitation of motion was the result of the subject accident. Therefore, the plaintiff has failed to raise any triable issues of fact as to whether he sustained a "serious injury” as defined under Insurance Law § 5102 (see, Wright v Melendez, 140 AD2d 337). Kunzeman J. P., Rubin, Eiber and Miller, JJ., concur.