MAROTTA v. MASTROIANNI (2000)

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Putnam County (Hickman, J.), dated December 22, 1998, which granted the defendant's motion for partial summary judgment dismissing the first cause of action asserted in 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 affirmed, with costs.

The medical evidence submitted by the defendants in support of their motion for summary judgment made out a prima facie case that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

The plaintiff's affidavit, consisting merely of subjective complaints of pain, was insufficient to raise a triable issue of fact (see, Almonacid v. Meltzer, 222 A.D.2d 631, 635 N.Y.S.2d 690;  Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233).   Moreover, in light of the plaintiff's admission in her affidavit, bill of particulars, and deposition testimony that she missed only approximately two weeks of work as a result of the accident, she failed to raise a triable issue of fact as to whether her injuries prevented her from performing “substantially all” of the material acts constituting her customary daily activities for not less than 90 of the first 180 days following the accident (Insurance Law § 5102[d];  see, Lalli v. Tamasi, 266 A.D.2d 266, 698 N.Y.S.2d 276).

MEMORANDUM BY THE COURT.