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DIANA KINCHLER, Appellant, v. KELVIN CRUZ et al., Respondents.

Ordered that the order is affirmed, with one bill of costs.

The defendants made prima facie showings, through a copy of the plaintiff's deposition testimony and the affirmed reports of their medical experts, 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 NY2d 345; Gaddy v. Eyler, 79 NY2d 955; Batista v. Olivo, 17 AD3d 494; Grant v. Fofana, 10 AD3d 446). The affirmation of the plaintiff's physician was insufficient to raise a triable issue of fact, since his diagnosis of tinnitus was based solely upon the plaintiff's subjective complaints ( see Congdon v. Preisman, 263 AD2d 808; cf. Preston v. Young, 239 AD2d 729).

Accordingly, the Supreme Court properly granted the defendants' separate motions for summary judgment dismissing the complaint.

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KINCHLER v. CRUZ
(Oct 31, 2005)