738 N.E.2d 358, 715 N.Y.S.2d 211
Court of Appeals of the State of New York.
Decided September 12, 2000.
Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered June 19, 2000, which, with two Justices dissenting, on the Court’s own motion, (1) recalled and vacated a prior decision and order of the Appellate Division, Second Department, dated November 22, 1999 (266 A.D.2d 421), and (2) substituted in place thereof an order affirming a judgment of the Supreme Court (Peter P. Cusick, J.), entered in Richmond County,, which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer serious injury within the meaning of Insurance § 5102 (d).
In this personal injury action arising from a motor vehicle accident, plaintiff alleged that he sustained permanent injuries. The defendant moved for summary judgment on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Supreme Court granted defendant’s motion and the Appellate Division affirmed, concluding that plaintiff’s evidence submitted in opposition to the motion was insufficient to raise a triable question of fact on
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the issue; that much of plaintiff’s evidence was not submitted in admissible form, and therefore was properly disregarded; and that plaintiff’s subjective complaints of pain contained in his affidavit and the affirmation of the plaintiff’s physician, which was based upon an examination conducted almost six years earlier, were insufficient to raise a triable issue as to whether plaintiff suffered a serious injury within the meaning of Insurance Law § 5102 (d).
Calcagno v. New York City Tr. Auth., 273 A.D.2d 334, affirmed.
Submitted by Martin Rubenstein, for appellant.
Submitted by Anita Isola, for respondent.
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (273 A.D.2d 334). Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur.