Marilyn F. DuMont et al., Respondents, v. Vijak Sandhir, Appellant

Marilyn F. DuMont et al., Respondents, v Vijak Sandhir, Appellant. [609 NYS2d 800] [MAJORITY] In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Graci, J.), dated December 6, 1991, which denied his motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. Contrary to the plaintiffs’ contentions, a review of the medical records of the treating physician, the records of the physical therapist, as well as the injured plaintiff’s own deposition testimony, demonstrates that the injured plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) (see, Iaria v Romero, 194 AD2d 769; Pagano v Kingsbury, 182 AD2d 268; Rhind v Naylor, 187 AD2d 498). Nor are we persuaded otherwise by the orthopedist’s affirmation, since it is comprised of "conclusory assertions tailored to meet the statutory requirements” (Lopez v Senatore, 65 NY2d 1017, 1019; see also, Waldman v Dong Kook Chang, 175 AD2d 204), and because the orthopedist’s diagnosis is based primarily upon the injured plaintiff’s own subjective complaints of pain (see, Georgia v Ramautar, 180 AD2d 713). Under these circumstances, the injured plaintiff failed to establish a prima facie case of serious injury (see, Scheer v Koubek, 70 NY2d 678; Licari v Elliott, 57 NY2d 230). Accordingly, the defendant’s motion for summary judgment is granted. Thompson, J. P., Rosenblatt, Altman and Hart, JJ., concur.