Summary
holding that plaintiff failed to raise a triable issue of fact as to whether her injuries prevented her from performing "substantially all" of her daily activities when she missed less than three weeks of work
Summary of this case from Gualtieri v. FarinaOpinion
December 29, 1995
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the order is affirmed, with costs.
The affidavit and report prepared by Dr. Howard B. Reiser, a neurologist, which the defendant submitted in support of her cross motion for summary judgment made out a prima facie case that the plaintiff had not sustained a serious injury as defined by Insurance Law § 5102 (d).
In opposition to the cross motion, the plaintiff submitted the affidavit and report of Sharon Zeevi, a chiropractor, and the affirmation and report of Edouard Kamhi, an orthopedist. These documents were prepared approximately two years after the physical examinations and the Magnetic Resonance Imaging procedure upon which the opinions thereon were based (see, Beckett v Conte, 176 A.D.2d 774; Philpotts v Petrovic, 160 A.D.2d 856; Covington v Cinnirella, 146 A.D.2d 565). Thus, there was insufficient proof of the duration of the alleged impairment.
Moreover, in light of the plaintiff's admission in her bill of particulars that she missed less than three weeks of work as a result of the accident, we further conclude that the plaintiff failed to raise a triable issue of fact as to whether her injuries prevented her from performing "substantially all" of the material acts constituting her customary daily activities during at least 90 out of the first 180 days following the accident (see, Covington v Cinnirella, supra). Mangano, P.J., Miller, Copertino, Santucci and Hart, JJ., concur.