Antoniou v. Duff
| Decision Date | 31 May 1994 |
| Parties | Eleni ANTONIOU, Respondent, v. John DUFF, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Allard, Fallon & Adler, Smithtown (Henry, Corrado & Cifone [Melissa P. Corrado and Nancy Cifone] of counsel), for appellants.
Wallace & Witty, P.C., Bay Shore (Jason F. Zimmerman, of counsel), for respondent.
Before THOMPSON, J.P., and ROSENBLATT, RITTER, FRIEDMANN and KRAUSMAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Oshrin, J.), dated October 15, 1992, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, the motion for summary judgment is granted, and the complaint is dismissed.
Conclusions, even of an examining doctor, which are unsupported by acceptable objective proof, are insufficient to defeat a motion for summary judgment directed to the threshold issue of whether the plaintiff has suffered serious physical injury (see, Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130; Georgia v. Ramautar, 180 A.D.2d 713, 579 N.Y.S.2d 743). Since Dr. Shetty, the plaintiff's only medical expert, did not examine the plaintiff prior to the accident and failed to set forth any objective basis for determining the degree to which the plaintiff's multiple sclerosis had progressed prior to the accident, his conclusion that the pre-existing condition was exacerbated by the motor vehicle accident in which she was involved is insufficient to defeat the motion for summary judgment.
The plaintiff's continuing subjective complaints of pain also fail to establish serious injury under the statute (see, Tipping-Cestari v. Kilhenny, 174 A.D.2d 663, 571 N.Y.S.2d 525).
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