Opinion
2007-1275 N C.
Decided October 9, 2008.
Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated June 22, 2007 The order granted defendant's motion for summary judgment.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
Order affirmed without costs.
Plaintiff commenced this action to recover for serious injuries allegedly sustained in a motor vehicle accident. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The court below granted the motion, and the instant appeal by plaintiff ensued.
Contrary to plaintiff's assertion on appeal, the medical evidence submitted by defendant in support of his motion for summary judgment made out a prima facie case that 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 tests performed by defendant's neurologist indicated a full range of motion of plaintiff's neck and spine. Plaintiff's subjective complaints of pain during the testing are not evidence of a serious injury ( see Scheer v Koubeck, 70 NY2d 678; Rudas v Petschauer , 10 AD3d 357 ). Additionally, defendant's radiologist determined that the MRI taken of plaintiff's lumbar spine indicated a chronic degenerative process. In support of his motion, defendant also submitted, inter alia, the certified transcript of plaintiff's deposition testimony. Plaintiff's testimonial admission that she returned to work after approximately two weeks undermined her claim that her injuries prevented her from performing substantially all of the material acts constituting her customary daily activities for at least 90 days out of the first 180 days following the accident ( see Hasner v Budnik , 35 AD3d 366 ).
In opposition to defendant's motion for summary judgment, plaintiff failed to raise a triable issue of fact. Plaintiff's treating physiatrist failed to address the findings of defendant's radiologist of a chronic degenerative process of long-standing duration in plaintiff's lumbar spine. The omission rendered speculative the treating physiatrist's conclusions that plaintiff's injuries and limitations were caused by the accident and were permanent in nature ( see Roman v Fast Lane Car Serv., Inc. , 46 AD3d 535 ; Geraldo v Mandanici, 24 AD3d 419).
Nor did plaintiff raise a triable issue with regard to the gap in her treatment, since she failed to explain why she declined to follow her own physiatrist's recommendations to seek further treatments, while claiming a serious injury ( see Pommells v Perez, 4 NY3d 566; see also Wei-San Hsu v Briscoe Protective Sys., Inc. , 43 AD3d 916 , 917). The record before us also demonstrates that plaintiff unsuccessfully opposed defendant's summary judgment motion with regard to the 90/180-day category of serious injury, as her own physician reported that plaintiff was working at the time of each of his five examinations of her ( see generally Rodriguez v Virga , 24 AD3d 650 , 652), and he did not direct plaintiff to refrain from working ( see Pierre v Nanton, 279 AD2d 621, 622).
In view of the foregoing, plaintiff failed to raise a triable issue of fact and defendant was properly granted summary judgment.
McCabe, J.P., Tanenbaum and Molia, JJ., concur.