Berbery v. Yin Kuen Yeung

Order, Supreme Court, New York 294 County (Richard Lowe, III, J.), entered October 20, 2000, which, upon reargument, granted defendant’s previously denied motion for summary judgment dismissing the complaint on the ground that neither plaintiff had sustained “serious injury” within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs. The properly certified and affirmed medical affirmations submitted by defendant, noting the absence of any objective basis for plaintiffs’ subjective complaints, were sufficient to meet defendant movant’s initial burden to make a prima facie showing that plaintiffs’ injuries were not serious within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955). By contrast, the medical affirmations submitted by plaintiffs in opposition to defendant’s motion were insufficient to rebut defendant’s showing. Apart from their formal deficiencies, such affirmations were substantively inadequate for, inter alia, their failure to indicate whether objective tests were performed to confirm plaintiffs’ subjective complaints of pain, or to quantify the severity of the limitations of motion purportedly found upon examination (see, Toure v Avis Rent A Car Sys., 284 AD2d 271). Concur — Andrias, J.P., Rosenberger, Lerner, Buckley and Marlow, JJ.