Opinion
July 12, 1996
Appeal from the Supreme Court, Onondaga County, Mordue, J.
Present — Lawton, J.P., Wesley, Doerr, Davis and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants' motion for partial summary judgment dismissing the causes of action on behalf of Sandra Muratore and Gabrielle Wilson (plaintiffs). In support of their motion, defendants submitted an affidavit of the orthopedic surgeon retained by them to conduct an independent examination of plaintiffs and to review plaintiffs' medical records and the reports of the treating physician; he opined therein that there is no objective evidence that plaintiffs sustained a serious injury. Defendants thereby met their initial burden of establishing a prima facie case that plaintiffs did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) ( see, Gaddy v. Eyler, 79 N.Y.2d 955).
"The burden then shifted to plaintiff[s] to come forward with sufficient evidence to overcome defendant[s'] motion by demonstrating that [they] sustained a serious injury within the meaning of the No-Fault Insurance Law" ( Gaddy v. Eyler, supra, at 957; see, Licari v. Elliott, 57 N.Y.2d 230, 235). Plaintiffs' proffered evidence, however, fails to demonstrate either a "permanent loss of use of a body * * * function or system" or a "significant limitation of use of a body function or system" (Insurance Law § 5102 [d]). The affidavit of plaintiffs' treating physician, which merely repeats plaintiffs' subjective complaints of pain and consists of "conclusory assertions tailored to meet the statutory requirements[,] * * * is insufficient to establish `serious injury'" ( Gaddy v. Eyler, supra, at 958; see, Lopez v Senatore, 65 N.Y.2d 1017, 1019).