However, the evidence at trial was insufficient to support that determination. Specifically, the plaintiff failed to submit evidence in the form of medical testimony or records to support his claim that he sustained a medically-determined injury (see, Ryan v. Xuda, 243 A.D.2d 457; Schaefer v. Pierce, 205 A.D.2d 521; Starosta v. Pedzik, 185 A.D.2d 308; Traugott v. Konig, 184 A.D.2d 765). The plaintiff's entire case rested upon his own vague and conclusory assertions of his inability to perform unspecified activities after the accident due to subjective complaints of pain (see, Estrella v. Marano, 255 A.D.2d 358; DiPalma v. Villa, 237 A.D.2d 323; Nunez v. Dabrowski, 185 A.D.2d 269; Traugott v. Konig, supra).
The defendants' contention, raised for the first time on appeal, that the plaintiff failed to establish a prima facie case that he had sustained a serious injury as defined by Insurance Law ยง 5102 (d) is unpreserved for appellate review (CPLR 5501 [a] [3]; 4401). In any event, the trial court properly submitted that issue to the jury for a special finding (see generally, Licari v Elliott, 57 N.Y.2d 230; Starosta v. Pedzik, 185 A.D.2d 308; Loucas v. A A Trucking Co., 134 A.D.2d 326, 327). We further hold that the jury verdict finding that the plaintiff had sustained an injury which resulted in "permanent consequential limitation of use of a body organ or member" (Insurance Law ยง 5102 [d]) is not against the weight of the evidence (see generally, Nicastro v. Park, 113 A.D.2d 129).
(see plaintiff's exhibit I). Although by no means conclusive, it is the opinion of this court that this uncontroverted statement of opinion serves to further undermine defendant's assertion that plaintiff did not sustain a serious injury (see Chapman v Capoccia, 283 AD2d 798, 799; cf. Starosta v Pedzik, 185 AD2d 308, appeal dismissed 80 NY2d 970; Jordan v Goldstein, 129 AD2d 616). Finally, defendant's belated attempt to make a prima facie showing of its entitlement to judgment as a matter of law through the inclusion of the affirmation of a medical expert attesting to plaintiff's alleged failure to sustain a "serious injury" is unavailing.
ody organ, member, function or system and/or a "medically determined" injury or impairment of a nonpermanent nature falling within the 90/180-day category, inasmuch as the report of plaintiff's psychiatric expert, a Clinical Professor of Psychiatry at Columbia University, based on examinations conducted over one year after the accident, indicates, inter alia, that plaintiff is suffering from a serious psychiatric condition, i.e., "Dysthymic Disorder," a significant and chronic depressive disorder, which is causally related to the accident of February 8, 1995 and has resulted in a significant deterioration in plaintiff's functioning in all areas of his life, e.g., occupationally, socially and maritally ( see Plaintiff's Exhibit I). Although by no means conclusive, it is the opinion of this court that this uncontroverted statement of opinion serves to further undermine defendant's assertion that plaintiff did not sustain a serious injury ( seeChapman v Capoccia, 283 A.D.2d 798, 799; cf. Starosta v. Pedzik, 185 A.D.2d 308, app. dismissed 80 N.Y.2d 970; Jordan v. Goldstein, 129 A.D.2d 616). Finally, defendant's belated attempt to make a prima facie showing of its entitlement to judgment as a matter of law through the inclusion of the affirmation of a medical expert attesting to plaintiff's alleged failure to sustain a "serious injury" is unavailing.