LAGANA v. (and a third-party action) (2000)

In an action to recover damages for personal injuries, the defendants Clinton Barrow and New York Methodist Hospital appeal from a judgment of the Supreme Court, Kings County (Douglass, J.), entered March 23, 1999, which, after a nonjury trial, is in favor of the plaintiff and against the defendants in the principal sum of $45,000.

ORDERED that the notice of appeal from an order of the same court dated January 27, 1999, is deemed a premature notice of appeal from the judgment (see, CPLR 5520[c] );  and it is further,

ORDERED that the judgment is reversed, on the law, and the complaint is dismissed;  and it is further,

ORDERED that the appellants are awarded one bill of costs.

 The plaintiff's evidence was legally insufficient to demonstrate that he sustained a serious injury within the meaning of Insurance Law § 5102(d).   The plaintiff's subjective complaints of pain in his arm and shoulder were insufficient to demonstrate the existence of a serious injury (see, Scheer v. Koubek, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788, 512 N.E.2d 309;  Carroll v. Jennings, 264 A.D.2d 494, 694 N.Y.S.2d 458).

 The plaintiff's expert physician, a neurologist who did not consider himself to be an expert in shoulder injuries, testified that the plaintiff's alleged shoulder injury prevented him from performing his usual activities for at least 90 of the 180 days immediately following the occurrence.   This testimony was improperly based upon the plaintiff's subjective complaints of pain (see, Crandall v. Sledziewski, 260 A.D.2d 754, 687 N.Y.S.2d 812).

MEMORANDUM BY THE COURT.