LOPEZ III v. ZANGRILLO (1998)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated May 27, 1997, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Once the defendants submitted evidence establishing that the injured plaintiff had not suffered a serious injury within the meaning of Insurance Law § 5102(d), the burden shifted to the plaintiffs to produce evidentiary proof in admissible form demonstrating the existence of a triable issue of fact (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affidavit of the injured plaintiff's examining physician consisted of conclusory assertions founded only upon subjective complaints of pain, and was tailored to meet the statutory requirements (see, Lincoln v. Johnson, 225 A.D.2d 593, 593-594, 639 N.Y.S.2d 124;  Donnelly v. Kurlander, 220 A.D.2d 716, 717, 633 N.Y.S.2d 342;  Giannakis v. Paschilidou, 212 A.D.2d 502, 503, 622 N.Y.S.2d 112;  Antoniou v. Duff, 204 A.D.2d 670, 670, 612 N.Y.S.2d 430).   The physician's affidavit is thus insufficient to raise a triable issue of fact.   Similarly, the affidavit of the injured plaintiff consisted merely of subjective complaints of pain, and was also insufficient to raise a triable issue of fact (see, Lincoln v. Johnson, supra;  Barrett v. Howland, 202 A.D.2d 383, 608 N.Y.S.2d 681).

MEMORANDUM BY THE COURT.