GLIELMI v. BANNER (1998)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Scarpino, J.), entered September 19, 1997, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The defendant's submissions made out a prima facie case that the plaintiff had not sustained a serious injury as defined by Insurance Law § 5102(d).   The affirmation of the plaintiff's treating physician was deficient insofar as it failed, inter alia, to indicate that the opinion expressed therein was based upon a recent medical examination (see, Attanasio v. Lashley, 223 A.D.2d 614, 636 N.Y.S.2d 834;  Philpotts v. Petrovic, 160 A.D.2d 856, 554 N.Y.S.2d 289;  Covington v. Cinnirella, 146 A.D.2d 565, 536 N.Y.S.2d 514).

 The plaintiff's self-serving affidavit concerning his inability to perform his daily activities after the accident, without more, is insufficient to establish that he had sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see, Yagliyan v. Yang, 241 A.D.2d 518, 663 N.Y.S.2d 991;  Cullum v. Washington, 227 A.D.2d 370, 642 N.Y.S.2d 86;  Atamian v. Mintz, 216 A.D.2d 430, 628 N.Y.S.2d 367).

MEMORANDUM BY THE COURT.