Opinion
08-142.
Decided on May 22, 2008.
Defendant Barry appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered November 28, 2007, which denied his motion for summary judgment dismissing the complaint.
Order (Joan M. Kenney, J.), entered November 28, 2007, reversed, with $10 costs, motion granted and complaint dismissed as against defendant-appellant Barry. The Clerk is directed to enter judgment accordingly.
PRESENT: McKEON, P.J., DAVIS, SCHOENFELD, JJ.
Defendant-appellant's medical evidence in support of his summary judgment motion showed that plaintiffs had normal ranges of motion and did not otherwise sustain "serious injury" (Insurance Law § 5102[d]) as a result of the 2001 vehicular accident, and thus satisfied defendant's initial burden on the motion. In opposition, plaintiffs failed to present evidence of quantitative range-of-motion limitations based on objective medical findings made within a reasonable time after the accident ( see Santana v Khan, 48 AD3d 318; Toulson v Young Han Pae, 13 AD3d 317). Restrictions of motion were not quantified until 2007, some six years after the accident, too remote in time to be probative ( see Lopez v Simpson, 398 AD3d 420). Plaintiffs also failed to offer competent medical proof that injuries caused by the accident prevented them from performing substantially all material daily activities for 90 of the first 180 days following the accident ( see Rossi v Alhassan, 48 AD3d 270 ; Alexander v Garcia, 40 AD3d 274).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.