124 A.D.2d 720 | N.Y. App. Div. | 1986
The defendant’s motion should have been granted. Insurance Law § 5102 (d) defines serious injury, in relevant part, as: "permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” The medical reports submitted by the plaintiff clearly demonstrated that the plaintiff did not suffer either permanent loss, permanent consequential limitation or a significant limitation of a body organ, member, function, or system (see, Caiazzo v Crespi, 124 AD2d 623). By his own admission, the plaintiff was not disabled for a period of 90 days. The plaintifF s affidavit of subjective pain was insufficient to raise a triable issue (see, Zoldas v Louise Cab Corp., 108 AD2d 378; Dwyer v Tracey, 105 AD2d 476; De Filippo v White, 101 AD2d 801). We decline to follow the Third Department rule in La Frenire v Capital Dist. Transp. Auth. (96 AD2d 664), which would require a