BALDASTY III v. COOPER (1997)

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Dutchess County (Hillery, J.), dated July 29, 1996, which, upon a determination of the same court dated July 9, 1996, granting the defendants' motion for summary judgment, dismissed his complaint.

ORDERED that the judgment is affirmed, with costs.

The defendants established, through the plaintiff's deposition testimony, that the plaintiff suffered only intermittent shoulder pain, a prima facie case that the plaintiff did not suffer “serious injury” within the meaning of Insurance Law § 5102(d) (see, Craft v. Brantuk, 195 A.D.2d 438, 600 N.Y.S.2d 251;  Tatti v. Cummings, 193 A.D.2d 596, 597 N.Y.S.2d 456;  Stadier v. Findley, 148 A.D.2d 600, 539 N.Y.S.2d 65).   The plaintiff's affidavit, which contained only subjective complaints of pain and the affirmed medical report of his treating physician, whose diagnosis was based on those subjective complaints of pain, was insufficient to raise a triable issue of fact (see, Lincoln v. Johnson, 225 A.D.2d 593, 639 N.Y.S.2d 124;  Barrett v. Howland, 202 A.D.2d 383, 608 N.Y.S.2d 681).

MEMORANDUM BY THE COURT.