Marcial Solarzano, Appellant, v. Power Test Petro, Inc., et al., Respondents

Marcial Solarzano, Appellant, v Power Test Petro, Inc., et al., Respondents. [MAJORITY] — Judgment, Supreme Court, Bronx County (Philip C. Modesto, J.), entered March 27, 1991, which granted defendants’ motion to set aside the jury verdict in favor of plaintiff and dismissed the complaint, unanimously affirmed, without costs. The trial court properly set aside the verdict and dismissed the complaint for failure to establish a prima facie case of serious injury, as required by Insurance Law § 5104 (a). Hospital records pertaining to the treatment plaintiff received immediately after the accident and other medical and hospital records over a course of nearly five years do not show any objective medical proof that he sustained a serious injury. Plaintiff’s medical expert’s conclusory opinion that plaintiff was suffering from "post concussion syndrome with diffuse cerebral dysfunction” was based upon subjective complaints of occasional and recurrent headaches some five years after the accident, not upon objective medical findings so as to establish serious injury (see, O’Neill v Rogers, 163 AD2d 466). Concur— Murphy, P. J., Sullivan, Rosenberger and Kassal, JJ.