Opinion
No. 2010–2321 K C2011–838 K C.
2012-05-7
Norman A. McLEAN, Respondent, v. CHASE MANHATTAN AUTO FINANCE CO., Defendant, and Chon U. Ho and Marcelin Papillon, Appellants.
Appeals from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 18, 2010. The order, insofar as appealed from by defendant Chon U. Ho, denied his motion for summary judgment dismissing the complaint insofar as asserted against him. The order, insofar as appealed from by defendant Marcelin Papillon, denied his separate motion for summary judgment dismissing the complaint insofar as asserted against him.
Present: WESTON, J.P., GOLIA and RIOS, JJ.
ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the order is reversed, without costs, and the motion by defendant Chon U. Ho for summary judgment dismissing the complaint insofar as asserted against him and the motion by defendant Marcelin Papillon for summary judgment dismissing the complaint insofar as asserted against him are granted.
Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident. Chon U. Ho and Marcelin Papillon (collectively defendants) separately moved for summary judgment dismissing the complaint insofar as asserted against each of them, respectively, on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The Civil Court, insofar as is relevant to this appeal, denied the motions, finding that, while defendants had made a prima facie showing of their entitlement to judgment as a matter of law, plaintiff had raised a triable issue of fact.
The Civil Court correctly determined that each defendant had met his prima facie burden of showing 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 N.Y.2d 345 [2002];Gaddy v. Eyler, 79 N.Y.2d 955 [1992] ). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff offered no explanation for the gaps in his medical treatment from July 13, 2000 to May 1, 2002 and from November 5, 2002 to July 2, 2004 ( see Pommells v. Perez, 4 NY3d 566 [2005];Hall v. Hecht, 92 AD3d 721 [2012];Torres v. Posy, 92 AD3d 676 [2012];West v. Martinez, 78 AD3d 934 [2010] ). Plaintiff also failed to proffer competent medical evidence that the injuries which he had allegedly sustained had rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days after the accident ( see Nieves v. Michael, 73 AD3d 716 [2010];Sainte–Aime v. Ho, 274 A.D.2d 569 [2000] ).
Accordingly, the order is reversed and the motion by defendant Chon U. Ho for summary judgment dismissing the complaint insofar as asserted against him and the motion by defendant Marcelin Papillon for summary judgment dismissing the complaint insofar as asserted against him are granted.
The decision and order of this court entered herein on December 19, 2011 ( see 34 Misc.3d 129[A], 2011 N.Y. Slip Op 52302[U] ) are hereby recalled and vacated ( see motion decided simultaneously herewith).