TAYLOR v. TAYLOR (1999)

In related actions to recover damages for personal injuries, etc., the plaintiff in Action No. 2 appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated June 9, 1998, which granted the separate motions of the defendants in Action No. 2 for summary judgment dismissing the complaint in that action.

ORDERED that the order is affirmed, with costs.

The Supreme Court correctly found that the appellant failed to rebut the respondents' prima facie showing that she did not suffer a serious injury within the meaning of the Insurance Law. The appellant's affidavit submitted in opposition to the respondents' motions for summary judgment contained only subjective complaints of pain.   Moreover, the affirmation and medical report of her treating physician was based only upon those subjective complaints of pain.   These submissions were insufficient to create a triable issue of fact as to the appellant's inability to perform substantially all of her normal activities for 90 out of the first 180 days subsequent to the accident (see, Baldasty v. Cooper, 238 A.D.2d 367, 656 N.Y.S.2d 332;  Lincoln v. Johnson, 225 A.D.2d 593, 639 N.Y.S.2d 124).

The appellant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.