MOORE v. EDISON (2006)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated March 23, 2005, which denied the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

 The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting copies of the plaintiff's deposition testimony and the affirmed medical report of the defendant's own examining physician (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Meely v. 4 G's Truck Renting Co., Inc., 16 A.D.3d 26, 789 N.Y.S.2d 277;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281).   In opposition, the evidence submitted by the plaintiff was insufficient to raise a triable issue of fact.   The plaintiff submitted the affirmation of her own treating physician who last treated the plaintiff almost two years prior to the defendant's motion.   While her treating physician stated in his affirmation that he conducted a physical examination of the plaintiff, no date was given as to when this occurred.   As such, the results of the examination have no probative value in the absence of a more recent examination (see Mohamed v. Dhanasar, 273 A.D.2d 451, 711 N.Y.S.2d 733;  Evans v. Mohammad, 243 A.D.2d 604, 663 N.Y.S.2d 273).   The affirmation of the plaintiff's other treating physician also lacked any probative value since that physician was not a physician authorized by law to practice in the State of New York (see CPLR 2106;  Palo v. Latt, 270 A.D.2d 323, 704 N.Y.S.2d 143).   In the absence of admissible objective evidence of injury, the plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact (see Rodney v. Solntseu, 302 A.D.2d 442, 754 N.Y.S.2d 911;  Paulino v. Xiaoyu Dai, 279 A.D.2d 619, 720 N.Y.S.2d 361;  Fisher v. Williams, 289 A.D.2d 288, 734 N.Y.S.2d 497).

Accordingly, the defendant was entitled to summary judgment dismissing the complaint.