Cavallaro v. Baker

Boomer, J. (dissenting).

I respectfully dissent. Contrary to the determination of the majority, the affidavits of plaintiff’s treating physician and of her medical expert did not raise an issue of fact whether plaintiff suffered a serious injury. The medical opinions relied upon by plaintiff were based upon plaintiff’s subjective complaints and are not sufficient to prove a serious injury within the meaning of Insurance Law § 5102 (see, Licari v Elliott, 57 NY2d 230; Passalacqua v Tomko, 134 AD2d 961; Costa v Billingsley, 127 AD2d 990). (Appeal from Order of Supreme Court, Herkimer County,…