Summary
dismissing plaintiff's claim for failure to offer a satisfactory explanation for the two-and-a-half year gap in treatment
Summary of this case from Scotto v. MoraldoOpinion
2003-08157.
Decided May 17, 2004.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated August 22, 2003, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Akin Smith, LLC, New York, N.Y. (Derek T. Smith and Zafer A. Akin of counsel), for appellant.
James P. Nunemaker, Jr. Associates, Uniondale, N.Y. (Kathleen E. Fioretti of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., ANITA R. FLORIO, HOWARD MILLER ROBERT W. SCHMIDT, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The defendant made a 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 motor vehicle accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v. Eyler, 79 N.Y.2d 955). The affirmation of the plaintiff's physician submitted in opposition to the defendant's motion was insufficient to raise a triable issue of fact. The affirmation was too conclusory to establish that any of the identified limitations in movement were of a significant nature, and neither the physician nor the plaintiff offered a satisfactory explanation for the 2 1/2 year gap between the end of the plaintiff's medical treatments and the physician's examination, during which time the plaintiff was gainfully employed installing and servicing commercial oil and gas burners.
Moreover, the plaintiff failed to submit any competent medical evidence supporting his claim that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days following the subject accident as a result of that accident ( see Sainte-Aime v. Ho, 274 A.D.2d 569, 570; Jackson v. New York City Tr. Auth., 273 A.D.2d 200, 201; Greene v. Miranda, 272 A.D.2d 441, 442; Arshad v. Gomer, 268 A.D.2d 450; Bennet v. Reed, 263 A.D.2d 800; DiNunzio v. County of Suffolk, 256 A.D.2d 498, 499).
Accordingly, the defendant's motion for summary judgment dismissing the complaint was properly granted.
PRUDENTI, P.J., FLORIO, H. MILLER, SCHMIDT and COZIER, JJ., concur.