Glielmi v. Banner

254 A.D.2d 255, 678 N.Y.S.2d 138, 1998 N.Y. App. Div. LEXIS 10066

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1998
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Scarpino, J.), entered September 19, 1997, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant’s submissions made out a prima facie case that the plaintiff had not sustained a serious injury as defined by Insurance Law § 5102 (d). The affirmation of the plaintiffs treating physician was deficient insofar as it failed, inter alia, to indicate that the opinion expressed therein was based upon a recent medical examination (see, Attanasio v Lashley, 223 AD2d 614; Philpotts v Petrovic, 160 AD2d 856; Covington v Cinnirella, 146 AD2d 565).

The plaintiffs self-serving affidavit concerning his inability to perform his daily activities after the accident, without more, is insufficient to establish that he had sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see, Yagliyan v Gun Shik Yang, 241 AD2d 518; Cullum v Washington, 227 AD2d 370; Atamian v Mintz, 216 AD2d 430). Miller, J. P., Thompson, Pizzuto, McGinity and Luciano, JJ., concur.