BARNES v. CISNEROS

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

Constantine BARNES, appellant, v. Renae CISNEROS, respondent.

Decided: February 22, 2005

A. GAIL PRUDENTI, P.J., ROBERT W. SCHMIDT, FRED T. SANTUCCI, DANIEL F. LUCIANO, and ROBERT A. SPOLZINO, JJ. John J. Appell, New York, N.Y. (Louis A. Badolato of counsel), for appellant. Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Loris Zeppieri and George J. Wilson of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated February 23, 2004, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The affirmations of the defendant's examining physicians, when considered with the plaintiff's deposition testimony, made out a prima facie showing 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;  Fragale v. Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901;  Hodges v. Jones, 238 A.D.2d 962, 661 N.Y.S.2d 159;  Gleason v. Huber, 188 A.D.2d 581, 591 N.Y.S.2d 69;  Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).   The affidavits of the plaintiff's physicians submitted in opposition to the defendant's motion were insufficient to raise a triable issue of fact as, inter alia, they failed to adequately account for the gap of time between the conclusion of the plaintiff's medical treatments and their examinations (see Jimenez v. Kambli, 272 A.D.2d 581, 708 N.Y.S.2d 460;  Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405), failed to adequately account for the plaintiff's having been injured in a subsequent accident (see e.g. Dimenshteyn v. Caruso, 262 A.D.2d 348, 694 N.Y.S.2d 66), appeared to be solely based upon the plaintiff's subjective complaints of pain (see Barrett v. Howland, 202 A.D.2d 383, 608 N.Y.S.2d 681;  LeBrun v. Joyner, 195 A.D.2d 502, 600 N.Y.S.2d 262;  Coughlan v. Donnelly, 172 A.D.2d 480, 567 N.Y.S.2d 835), and appeared to have been tailored solely to meet the statutory requirements (see Giannakis v. Paschilidou, 212 A.D.2d 502, 622 N.Y.S.2d 112;  Powell v. Hurdle, 214 A.D.2d 720, 625 N.Y.S.2d 634).

Accordingly, the defendant's motion for summary judgment dismissing the complaint was properly granted.

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