KINCHLER v. CRUZ

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

Diana KINCHLER, appellant, v. Kelvin CRUZ, et al., respondents.

Decided: October 31, 2005

BARRY A. COZIER, J.P., FRED T. SANTUCCI, DANIEL F. LUCIANO, STEVEN W. FISHER, and JOSEPH COVELLO, JJ. Bruce J. Gitlin, New York, N.Y., for appellant. O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains, N.Y. (Montgomery L. Effinger of counsel), for respondent Kelvin Cruz. Mary Audi Bjork (Kornfeld, Rew, Newman & Simeone, Suffern, N.Y. [William S. Badura] of counsel), for respondent Michael McIntee. O'Connor, Redd, Gollihue & Sklarin, LLP, White Plains, N.Y. (Laura Freeman of counsel), for respondent Rudolf Rottmeier.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Bergerman, J.), dated October 12, 2004, which granted the defendants' separate motions for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs.

The defendants made prima facie showings, through a copy of the plaintiff's deposition testimony and the affirmed reports of their medical experts, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Batista v. Olivo, 17 A.D.3d 494, 795 N.Y.S.2d 54;  Grant v. Fofana, 10 A.D.3d 446, 781 N.Y.S.2d 160). The affirmation of the plaintiff's physician was insufficient to raise a triable issue of fact, since his diagnosis of tinnitus was based solely upon the plaintiff's subjective complaints (see Congdon v. Preisman, 263 A.D.2d 808, 693 N.Y.S.2d 757;  cf. Preston v. Young, 239 A.D.2d 729, 657 N.Y.S.2d 499).

Accordingly, the Supreme Court properly granted the defendants' separate motions for summary judgment dismissing the complaint.

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