Acca v. New York City Transit Authority

—In an action to re*632cover damages for personal injuries, the defendants New York City Transit Authority, Gamillo Scarcella, and Anthony Benanti appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 14, 2000, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and the defendants George N. Lagoudes and Wall Street Pen Stationers separately appeal, as limited by their brief, from so much of the same order as denied their motion for the same relief.

Ordered that the order is reversed, on the law, with one bill of costs payable to the appellants appearing separately and filing separate briefs, the motions are granted, and the complaint is dismissed in its entirety.

The defendants established a prima facie case that the plaintiffs injuries were not serious through the affirmed report of an orthopedist who examined her and concluded that she had no disability from an orthopedic standpoint (see, Gaddy v Eyler, 79 NY2d 955, 956-957).

In opposition to the motions, the plaintiff submitted an affidavit of a physician based upon examinations conducted three to four years earlier (see, Beckett v Conte, 176 AD2d 774). That doctor failed to indicate any loss of range of motion, and therefore, the affidavit was insufficient to raise an issue of fact. Accordingly, the Supreme Court should have granted the defendant’s motions dismissing the complaint. O’Brien, J. P., Krausman, Goldstein, Schmidt and Crane, JJ., concur.