Opinion
570437/03.
Decided March 23, 2004.
Defendant appeals from an order of the Civil Court, Bronx County, dated April 29, 2003 (Irving Rosen, J.) denying his motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" (Insurance Law § 5102[d]).
Order dated April 29, 2003 (Irving Rosen, J.) reversed, with $10 costs, defendant's motion for summary judgment is granted, and the complaint is dismissed.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.
The record lacks evidence demonstrating that plaintiff sustained a "serious injury" (Insurance Law § 5102[d]; see, Nelson v. Distant, 308 AD2d 338). Contemporaneous medical records show that plaintiff suffered nothing more than sprains and strains that resolved shortly after the April 1, 1998 accident. Plaintiff was treated and released at a hospital that evening, and was advised not to work for two days. An MRI revealed no injury. The treating doctor's notes reflect that plaintiff's neck and back were "much better" one month later, and that she was "feeling good" in June, two months post-accident. Plaintiff ceased treatment in July 1998.
Given the lack of evidence of injury in the near aftermath of the accident, the affirmation of plaintiff's physician, after a four year gap in treatment, concluding that plaintiff had a "permanent and significant" loss of movement and disability, is plainly insufficient (see, Pommells v. Perez, ___ AD3d ___, 2004 WL 213164). It was not until August 2002, more than four years after she last treated plaintiff, that Dr. Sapka quantified limitations of movement in plaintiff's spine, and only then did the doctor assert that she had directed plaintiff not to return to work during treatment (see Shinn v. Catanzaro, 1 AD3d 195).
In light of the lengthy gap in treatment, the lack of objective evidence of serious injury at the time of the accident, and the fact that significant limitations of movement were not reported until four years later, we find Dr. Sapka's opinion speculative, conclusory and inadequate to defeat summary judgment (see, Pommells v. Perez, supra; Shinn v. Catanzaro, supra).
This constitutes the decision and order of the court.