SIERSON v. GACEK (2009)

Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Brian E. Sierson (plaintiff) when the vehicle he was operating was rear-ended by a vehicle operated by defendant John J. Gacek and owned by defendants.   Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  Supreme Court granted the motion only insofar as plaintiffs alleged that plaintiff sustained a serious injury with respect to the 90/180 category.   We conclude that the court should have granted the motion in its entirety, thus determining that plaintiff did not sustain a serious injury with respect to the permanent loss of use, permanent consequential limitation of use or significant limitation of use categories, which were the remaining categories of serious injury set forth in the bill of particulars.   Defendants met their burden on the motion “by establishing through competent medical evidence that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)” under those three remaining categories (Cullen v. Treen, 30 A.D.3d 1086, 1087, 816 N.Y.S.2d 799;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718), and plaintiffs failed to raise an issue of fact by submitting the affidavits of plaintiff and plaintiff's neurologist.   The affidavits were “based solely on plaintiff's subjective complaints of pain” and numbness (Cullen, 30 A.D.3d at 1087, 816 N.Y.S.2d 799;  see Meyer v. Carney, 187 A.D.2d 931, 590 N.Y.S.2d 356;  see also Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197).   Furthermore, plaintiff's neurologist “did not set forth the tests he conducted or their results to support his conclusions” that plaintiff sustained an injury to the pudendal nerve and that plaintiff would have difficulty conceiving children (Burke v. Carney, 37 A.D.3d 1107, 1108, 829 N.Y.S.2d 358).

It is hereby ORDERED that the amended order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety and the complaint is dismissed.

MEMORANDUM: