Opinion
January 31, 2001.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated October 13, 1999, as denied their cross motion for summary judgment dismissing the complaint on the ground that the plaintiff Oliver Harney did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied their motion for partial summary judgment on the issue of liability.
Fogarty Fogarty, P.C., Mineola, N.Y. (Paul Felicione of counsel), for appellants-respondents.
O'Dwyer Bernstien, LLP, New York, N.Y. (Gary Silverman of counsel), for respondents-appellants.
Before: CORNELIUS J. O'BRIEN, J.P., FRED T. SANTUCCI, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof denying the cross motion and substituting therefore a provision granting the cross motion; as so modified the order is affirmed, with costs to the defendants, and the complaint is dismissed.
The defendants made a prima facie showing that the injured plaintiff, Oliver Harney, did not sustain a serious injury within the meaning of the Insurance Law § 5102(d), thereby shifting the burden to the plaintiffs to produce objective proof of a serious injury (see, Grossman v. Wright, 268 A.D.2d 79; Fernandez v. Shields, 223 A.D.2d 666). The affirmation of the plaintiffs' medical expert was insufficient to defeat the motion for summary judgment. The expert improperly relied on an unsworn magnetic resonance image report prepared by another physician (see, Williams v. Hughes, 256 A.D.2d 461; Merisca v. Alford, 243 A.D.2d 613, 614; Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267) and failed to indicate what objective tests were used to quantify the results contained therein (see, Grossman v. Wright, supra; Russell v. City of Mount Vernon, 256 A.D.2d 454, 455; Merisca v. Alford, supra; Lincoln v. Johnson, 225 A.D.2d 593; Philpotts v. Petrovic, 160 A.D.2d 856, 857). Furthermore, the expert stated conclusions that were unsupported by objective proof and were tailored to meet statutory requirements (see, Waldman v. Dong Kook Chang, 175 A.D.2d 204; Lopez v. Senatore, 65 N.Y.2d 1017, 1019; Antorino v. Mordes, 202 A.D.2d 528, 529). The injured plaintiff's self-serving assertions that he was unable to perform his customary daily activities for 90 out of the 180 days immediately following the accident were insufficient to raise any triable issues of fact (see, Rum v. Pam Transp., 250 A.D.2d 751; Davis v. New York City Transit Authority, 248 A.D.2d 428; Yagliyan v. Gun Shik Yang, 241 A.D.2d 518; Phillips v. Costa, 160 A.D.2d 855, 856), as were his subjective complaints of pain (see, Castano v. Synergy Gas Corp., 250 A.D.2d 640; Lincoln v. Johnson, supra, at 593; Philpotts v. Petrovic, supra, at 857; Phillips v. Costa, supra).