COCIVERA v. WALDOWSKY

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Supreme Court, Appellate Division, Second Department, New York.

Lisa C. COCIVERA, respondent, v. Harvey WALDOWSKY, et al., appellants.

Decided: February 22, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER DANIEL W. JOY and MYRIAM J. ALTMAN, JJ. Frank V. Merlino (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellants. Donald H. Hazelton, Williston Park, N.Y. (Kevin P. Fitzpatrick of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Pincus, J.), dated June 30, 1998, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff commenced the instant action against the defendants to recover damages for personal injuries allegedly sustained in an automobile collision.   The defendants moved for summary judgment on the ground that the plaintiff did not suffer a serious injury (see, Insurance Law § 5102[d] ) in the collision.   The Supreme Court denied the motion.   We reverse.

The Supreme Court improperly concluded that the defendants failed to establish their entitlement to summary judgment dismissing the complaint, as the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).   Contrary to the Supreme Court's conclusion, Dr. Todd S. Soifer, who examined the plaintiff on behalf of the defendants, properly affirmed the truth of his medical report (see, CPLR 2106).   Moreover, that report and the affirmed report of Dr. Burton S. Diamond, who also examined the plaintiff on behalf of the defendants, established, prima facie, that the plaintiff did not sustain a serious injury as a matter of law (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

In response, the plaintiff was required to raise a triable issue of fact on the issue.   Her evidence failed to do so.   The conclusion of the plaintiff's chiropractor that the plaintiff suffers constant pain was based upon the plaintiff's subjective complaints of pain (see, Delaney v. Rafferty, 241 A.D.2d 537, 663 N.Y.S.2d 834;  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), rather than a medically-determined injury (cf., Puma v. Player, 233 A.D.2d 308, 649 N.Y.S.2d 461;  Washington v. Mercy Home for Children, 232 A.D.2d 549, 648 N.Y.S.2d 956;  Mattei v. Kennedy, 243 A.D.2d 690, 664 N.Y.S.2d 572;  Bassett v. Romano, 126 A.D.2d 693, 511 N.Y.S.2d 298).   Moreover, the plaintiff's evidence failed to raise a triable issue of fact as to whether she suffered a medically-determined injury which prevented her from performing all or substantially all of her usual and customary daily activities for 90 of the first 180 days following the collision (see, Insurance Law § 5102 [d];  Snyder v. Perez, 246 A.D.2d 526, 667 N.Y.S.2d 413;  Curry v. Velez, 243 A.D.2d 442, 663 N.Y.S.2d 63;  DiPalma v. Villa, 237 A.D.2d 323, 655 N.Y.S.2d 444;  Baker v. Zelem, 202 A.D.2d 617, 618, 609 N.Y.S.2d 330).

MEMORANDUM BY THE COURT.

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