Opinion
February 22, 1999
Appeal from the Supreme Court, Queens County (Milano, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The medical evidence submitted by the defendant made out a prima facie case that the plaintiff Constantine Andrews (hereinafter Andrews) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The medical evidence which the plaintiffs submitted in opposition to the motion failed to raise a triable issue of fact on the issue of serious injury ( see, CPLR 3212 [b]. There is no indication in the record that the opinions expressed by the plaintiffs' experts in the reports submitted in opposition to the motion were based upon recent examinations of Andrews ( see, Beckett v. Conte, 176 A.D.2d 774). Furthermore, neither of the plaintiffs' experts indicated that Andrews was unable to perform his usual and customary daily activities for at least 90 days out of the 180 days immediately following the occurrence ( see, Insurance Law § 5102 [d]).
Bracken, J. P., Thompson, Goldstein and McGinity, JJ., concur.