| Villeda v Cassas |
| 2008 NY Slip Op 09385 [56 AD3d 762] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Claudia R. Villeda, Appellant, v Sylvia M. Cassas et al.,Respondents. |
—[*1] Susan B. Owens, White Plains, N.Y. (Paul L. Neugebauer of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Orange County (Giacomo, J.), dated July 26, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The plaintiff alleges that she sustained various physical and psychological injuries from anaccident on August 5, 2003, in which the defendants' motor vehicle collided with her motorvehicle. After the plaintiff commenced this action, the defendants moved for summary judgmentdismissing the complaint on the ground that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d).
The defendants established, prima facie, that the injuries the plaintiff allegedly sustainedeither were not serious within the meaning of Insurance Law § 5102 (d) or were not theresult of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d345, 352 [2002]; Gaddy v Eyler, 79 NY2d 955, 957 [1992]). Although " 'acausally-related emotional injury, alone or in combination with a physical injury, can constitute aserious injury' " (Taranto v McCaffrey, 40 AD3d 626, 627 [2007], quoting Bissonettev Compo, 307 AD2d 673, 674 [2003]), any psychological condition or depression sustainedby the plaintiff was found by [*2]the defendants' neurologicalexpert to be unrelated to the subject motor vehicle accident, in light of detailed medical recordsprepared by the plaintiff's own treating physician establishing that her depressive condition hadcontinually existed since 2000.
The evidence submitted by the plaintiff in opposition to the defendants' motion failed to raisea triable issue of fact (see Olson v Russell, 35 AD3d 684 [2006]). The affidavit submittedby the plaintiff's treating neurologist, aside from relying in part upon an unsworn EEG report ofanother physician (see Olson v Russell, 35 AD3d 684, 685 [2006]; Magarin vKropf, 24 AD3d 733, 734 [2005]; Friedman v U-Haul Truck Rental, 216 AD2d 266,266-267 [1995]), sets forth a diagnosis of post-traumatic encephalopathy and concussion basedonly upon the plaintiff's subjective complaints, as all admissible objective test results werenormal or inconclusive (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]).
The plaintiff's remaining contentions are without merit. Ritter, J.P., Florio, Miller and Dillon,JJ., concur.