Opinion
570509/04.
Decided January 6, 2005.
Defendants Ventura and Isalguez appeal from an order of the Civil Court, New York County, dated June 10, 2004 (Jeffrey K. Oing, J.) which denied their motion for summary judgment dismissing the complaint.
Order dated June 10, 2004 (Jeffrey K. Oing, J.) reversed, with $10 costs, defendants-appellants' motion for summary judgment is granted, and the complaint is dismissed.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
Defendants-appellants met their burden to establish prima facie that the underlying vehicular collision did not cause plaintiff a "serious injury" within the meaning of Insurance Law § 5102(d) through submission, inter alia, of affirmed medical reports indicating that plaintiff sustained only back sprains which had "resolved". The lone medical evidence submitted by plaintiff in opposition was the affidavit of a chiropractor who treated plaintiff on several occasions in 2002, more than three years after the accident. The chiropractor described plaintiff's restriction of motion as "mild", and did not offer an opinion as to causation. Absent from plaintiff's submission were any medical records or sworn statement from the orthopedist who treated her in the aftermath of the February 1999 accident. The lack of a contemporaneous showing that plaintiff sustained a serious injury in 1999 ( see Pommells v. Perez, 4 AD3d 101), the substantial gap in treatment ( see Beaubrun v. New York City Tr. Auth, 9 AD3d 258), and the two-year interval between the chiropractor's findings and affidavit, with no indication of further examination or treatment ( see Medina-Santiago v. Mojovits, 5 AD3d 253), rendered plaintiff's submission inadequate to defeat summary judgment.
This constitutes the decision and order of the court.