PHILPOTTS v. PETROVIC

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

A review of the record demonstrates that the plaintiffs have failed to establish a prima facie case that they sustained "serious injury" within the meaning of Insurance Law § 5102 (d). The medical report submitted by the parties and the EBT testimony of both plaintiffs detailing their prompt recovery demonstrate that any physical limitations suffered by them were merely mild or slight in nature (see, Thrall v City of Syracuse, 60 N.Y.2d 950, revg 96 A.D.2d 715; Licari v Elliott, 57 N.Y.2d 230; Ciaccio v J & R Home Improvements, 149 A.D.2d 558). While an affidavit of the plaintiffs' former treating physician attempted to characterize their injuries as serious, the affidavit was prepared more than 2½ years after he last saw the plaintiffs and did not indicate that the opinion expressed therein was based upon any recent medical examination of them (see, Covington v Cinnirella, 146 A.D.2d 565). Moreover, neither that affidavit nor the medical reports previously prepared by the physician demonstrated that the purported limitations suffered by the plaintiffs were objectively measured or quantified (see, Covington v Cinnirella, supra).

Finally, the plaintiffs' continuing subjective complaints of occasional pain cannot suffice to establish "serious injury" under the statute (see, Scheer v Koubek, 70 N.Y.2d 678; Palmer v Amaker, 141 A.D.2d 622; Gootz v Kelly, 140 A.D.2d 874). Accordingly, the Supreme Court erred in denying the defendant's motion for summary judgment dismissing the complaint.