Opinion
2003-01849.
December 22, 2003.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated January 13, 2003, which denied their 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).
Cheven, Keely Hatzis, New York, N.Y. (Stacy R. Seldin of counsel), for appellant.
Brown Gropper, LLP, New York, N.Y. (Joshua Gropper of counsel), for respondent.
Before: THOMAS A. ADAMS and WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
Through the affirmations of their medical experts, the plaintiff's EBT testimony, and the records of the plaintiff's treating physicians, the defendants made a prima facie showing 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 N.Y.2d 345; Gaddy v. Eyler, 79 N.Y.2d 955). The affirmation of the plaintiff's expert, who first examined the plaintiff after the defendants moved for summary judgment, was based upon subjective complaints of pain and speculation. Thus, it was insufficient to raise a triable issue of fact ( see Trotter v. Hart, 285 A.D.2d 772; Cabri v. Myung-Soo Park, 260 A.D.2d 525; Williams v. Ciaramella, 250 A.D.2d 763; Medina v. Zalmen Reis and Assocs., 239 A.D.2d 394; Waldman v. Dong Kook Chang, 175 A.D.2d 204).
Accordingly, the defendants were entitled to summary judgment dismissing the complaint.
ALTMAN, J.P., S. MILLER, McGINITY, ADAMS and MASTRO, JJ., concur.