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Dantini v. Cuffie

Appellate Division of the Supreme Court of New York, Second Department
Feb 10, 2009
59 A.D.3d 490 (N.Y. App. Div. 2009)

Opinion

No. 2008-04748.

February 10, 2009.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Weber, J.), dated March 14, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Gruenberg Kelly, P.C., Ronkonkoma, N.Y., for appellant.

Baker, McEvoy, Morrissey Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel), for respondents.

Before: Mastro, J.P., Fisher, Florio, Carni and Eng, JJ.


Ordered that the order is affirmed, with costs.

Once the defendants made their prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955), the burden shifted to the plaintiff to produce sufficient evidence to raise a triable issue of fact ( see CPLR 3212). The plaintiff failed to meet this burden. The plaintiff failed to adequately explain the nearly three-year gap in medical treatments ( see Pommells v Perez, 4 NY3d 566, 574; Cervino v Gladysz-Steliga, 36 AD3d 744). Moreover, the plaintiffs subjective complaints of pain were insufficient to establish the existence of a serious injury ( see Rudas v Petschauer, 10 AD3d 357; Coloquhoun v 5 Towns Ambulette, 280 AD2d 512; LeBrun v Joyner, 195 AD2d 502), particularly where, as here, there were no objective medical findings to substantiate those complaints ( see Carroll v Jennings, 264 AD2d 494). Furthermore, the plaintiff failed to proffer competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident ( see Sainte-Aime v Ho, 274 AD2d 569; DiNunzio v County of Suffolk, 256 AD2d 498).


Summaries of

Dantini v. Cuffie

Appellate Division of the Supreme Court of New York, Second Department
Feb 10, 2009
59 A.D.3d 490 (N.Y. App. Div. 2009)
Case details for

Dantini v. Cuffie

Case Details

Full title:MARY DANTINI, Appellant, v. MYLES CUFFIE et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 10, 2009

Citations

59 A.D.3d 490 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 1079
873 N.Y.S.2d 189

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