Soto v. Fogg

255 A.D.2d 502, 680 N.Y.S.2d 174, 1998 N.Y. App. Div. LEXIS 12648

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Levitt, J.), dated November 3, 1997, which granted the defendant’s motion for summary judgment on the ground that the plaintiff Joann Soto did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The Supreme Court correctly granted the defendant’s motion for summary judgment. The defendant established a prima facie case that the injured plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955). The injured plaintiffs subjective complaints of pain, as contained in her affidavit submitted in opposition to the defendant’s motion, without more, were insufficient to raise a triable issue of fact as to whether she sustained a serious injury (see, Scheer v Koubek, 70 NY2d 678; Lincoln v Johnson, 225 AD2d 593; Orr v Miner, 220 AD2d 567).

We note that the Magnetic Resonance Imaging report submitted by the plaintiffs was not in admissible form, and therefore, should not be considered on the instant motion (see, Grasso v Angerami, 79 NY2d 813, 814; Gleason v Huber, 188 AD2d 581; Craft v Brantuk, 195 AD2d 438). Rosenblatt, J. P., O’Brien, Sullivan, Krausman and Florio, JJ., concur.