Barnes v. Cisneros
790 N.Y.S.2d 513
N.Y. App. Div.
2005
Check Treatment

CONSTANTINE BARNES, Appellant, v RENAE CISNEROS, Respondent.

Supreme Court, Appellate Division, Second Department, New York

790 N.Y.S.2d 513

Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated February 23, 2004, which granted the defendant‘s 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 affirmations of the defendant‘s examining physicians, when considered with the plaintiff‘s deposition testimony, made out a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see ; ; ; ; ; ). The affidavits of the plaintiff‘s physicians submitted in opposition to the defendant‘s motion were insufficient to raise a triable issue of fact as, inter alia, they failed to adequately account for the gap of time between the conclusion of the plaintiff‘s medical treatments and their examinations (see; ), failed to adequately account for the plaintiff‘s having been injured in a subsequent accident (see e.g. ), appeared to be solely based upon the plaintiff‘s subjective complaints of pain (see ; ; ), and appeared to have been tailored solely to meet the statutory requirements (see ; ).

Accordingly, the defendant‘s motion for summary judgment dismissing the complaint was properly granted. Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.