GUZMAN v. NEW YORK CITY TRANSIT AUTHORITY

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

Brunilda GUZMAN, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., respondents.

Decided: February 22, 2005

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, STEPHEN G. CRANE, REINALDO E. RIVERA, and STEVEN W. FISHER, JJ. Barry Siskin, New York, N.Y., for appellant. Wallace D. Gossett, Brooklyn, N.Y. (Anita Isola of counsel), for respondents New York City Transit Authority, M.A.B.S.T.O.A., and Alisa T. McCullough. Malaparo & Prisco, LLP, New York, N.Y. (Ian B. Forman of counsel), for respondents Santa Fe Transportation, Inc., and Peter L. Pierro.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated November 24, 2003, as granted the separate motions of the defendants New York City Transit Authority, M.A.B.S.T.O.A., and Alisa T. McCullough, and the defendants Santa Fe Transportation, Inc., and Peter L. Pierro for summary judgment dismissing the complaint insofar as asserted against them, 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 insofar as appealed from, with one bill of costs.

 The defendants New York City Transit Authority, M.A.B.S.T.O.A., and Alisa T. McCullough (hereinafter collectively the TA defendants), and the defendants Santa Fe Transportation, Inc., and Peter L. Pierro (hereinafter collectively the Santa Fe defendants) made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) through the testimony of the plaintiff from the hearing pursuant to General Municipal Law § 50-h and her deposition, copies of the medical records of her treating physicians, and the affirmed medical reports of their own examining physicians (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;  Gleason v. Huber, 188 A.D.2d 581, 582, 591 N.Y.S.2d 69).   In opposition, the affirmations of the plaintiff's medical experts were insufficient to raise a triable issue of fact.   They failed to account for the gap of 3 1/212 years between the conclusion of the plaintiff's initial medical treatments and their subsequent examinations (see Jimenez v. Kambli, 272 A.D.2d 581, 582, 708 N.Y.S.2d 460;  Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405;  Dimenshteyn v. Caruso, 262 A.D.2d 348, 349, 694 N.Y.S.2d 66).   The affirmation of Dr. Smith of the medical facility where the plaintiff was treated, submitted in the plaintiff's reply papers, attempting to explain this gap, lacked foundation in the plaintiff's medical records of her treatment at that facility.   In addition, the plaintiff's medical experts failed to account for her history of injuries to her neck, right shoulder, and back from a previous accident (see e.g. McNeil v. Dixon, 9 A.D.3d 481, 482-483, 7 N.Y.S.2d 635).   Their conclusions appear to be based solely upon the plaintiff's subjective complaints of pain (see Hammerling v. Korn, 8 A.D.3d 227, 228, 777 N.Y.S.2d 314;  Barrett v. Howland, 202 A.D.2d 383, 384, 608 N.Y.S.2d 681;  Malloy v. Brisco, 183 A.D.2d 704, 705, 583 N.Y.S.2d 290).

Accordingly, the Supreme Court properly granted the motions of the TA defendants and the Santa Fe defendants for summary judgment dismissing the complaint insofar as asserted against each of them.

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