Opinion
Submitted January 10, 2001.
February 13, 2001.
In an action to recover damages for personal injury, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated January 31, 2000, as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that the plaintiff Nancy Savattere did not sustain a medically-determined injury which prevented her from performing substantially all of the material acts constituting her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident, and denied that branch of their cross motion for summary judgment on that issue.
Isaacson, Schiowitz, Korson Solny, New York, N.Y. (Sanford Solny of counsel), for appellants.
Frank A. Composto, Brooklyn, N.Y., for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant met her initial burden of demonstrating that the plaintiff Nancy Savattere did not sustain a serious injury within the meaning of Insurance Law § 5102(d). It was, therefore, incumbent upon the plaintiffs to come forward with sufficient evidence to create an issue of fact as to whether the injured plaintiff sustained a medically-determined injury which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying accident (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957). The plaintiffs failed to do so.
The affirmation of the injured plaintiff's treating physician was tailored to meet statutory requirements, and, as such, was insufficient to raise a triable issue of fact (see, Grossman v. Wright, 268 A.D.2d 79; Powell v. Hurdle, 214 A.D.2d 720). Moreover, the injured plaintiff's subjective complaints of pain and disability were insufficient to raise a genuine issue of fact in this matter (see, Kauderer v. Penta, 261 A.D.2d 365).