Rawa v. Kroeger

229 A.D.2d 947, 646 N.Y.S.2d 473, 1996 N.Y. App. Div. LEXIS 8983

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendants’ motion for summary judgment dismissing the complaint. Defendants established prima facie that plaintiff did not sustain a serious injury, and plaintiff "failed to sustain [his] burden of making ' "a prima facie showing of serious injury sufficient to raise a triable issue of fact” ’ ” (Eldred v Stoddard, 217 AD2d 952, 952-953; see, Insurance Law § 5102 [d]). The "certified report” of plaintiffs physician was based upon plaintiff’s subjective complaints and was not sufficient to establish a serious injury (see, Eldred v Stoddard, supra, at 953). (Appeal from Order of Supreme Court, Erie County, Gorski, J.—Summary Judgment.) Present—Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.