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OLIVER HARNEY, ET AL., respondents-appellants, v. TOMBSTONE PIZZA CORP., ET AL., appellants-respondents.

DECISION ORDER

ORDERED that the order is modified, on the law, by deleting the provision thereof denying the cross motion and substituting therefore a provision granting the cross motion; as so modified the order is affirmed, with costs to the defendants, and the complaint is dismissed.

The defendants made a prima facie showing that the injured plaintiff, Oliver Harney, did not sustain a serious injury within the meaning of the Insurance Law § 5102(d), thereby shifting the burden to the plaintiffs to produce objective proof of a serious injury (see, Grossman v. Wright, 268 A.D.2d 79; Fernandez v. Shields, 223 A.D.2d 666). The affirmation of the plaintiffs' medical expert was insufficient to defeat the motion for summary judgment. The expert improperly relied on an unsworn magnetic resonance image report prepared by another physician (see, Williams v. Hughes, 256 A.D.2d 461; Merisca v. Alford, 243 A.D.2d 613, 614; Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267) and failed to indicate what objective tests were used to quantify the results contained therein (see, Grossman v. Wright, supra; Russell v. City of Mount Vernon, 256 A.D.2d 454, 455; Merisca v. Alford, supra; Lincoln v. Johnson, 225 A.D.2d 593; Philpotts v. Petrovic, 160 A.D.2d 856, 857). Furthermore, the expert stated conclusions that were unsupported by objective proof and were tailored to meet statutory requirements (see, Waldman v. Dong Kook Chang, 175 A.D.2d 204; Lopez v. Senatore, 65 N.Y.2d 1017, 1019; Antorino v. Mordes, 202 A.D.2d 528, 529). The injured plaintiff's self-serving assertions that he was unable to perform his customary daily activities for 90 out of the 180 days immediately following the accident were insufficient to raise any triable issues of fact (see, Rum v. Pam Transp., 250 A.D.2d 751; Davis v. New York City Transit Authority, 248 A.D.2d 428; Yagliyan v. Gun Shik Yang, 241 A.D.2d 518; Phillips v. Costa, 160 A.D.2d 855, 856), as were his subjective complaints of pain (see, Castano v. Synergy Gas Corp., 250 A.D.2d 640; Lincoln v. Johnson, supra, at 593; Philpotts v. Petrovic, supra, at 857; Phillips v. Costa, supra).

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HARNEY v. TOMBSTONE PIZZA CORP
(Jan 31, 2001)