Opinion
2003-00464.
December 1, 2003.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Bonina, J.), dated October 15, 2002, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Jaffe Nohavicka, New York, N.Y. (Stacy R. Seldin of counsel), for appellant.
Alexander Dranov, New York, N.Y., for respondent.
Before: SANDRA L. TOWNES, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v. Eyler, 79 N.Y.2d 955; Rainey v. Smith, 300 A.D.2d 383; Duldulao v. City of New York, 284 A.D.2d 296). In opposition, the plaintiff failed to submit medical proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions in his spine ( see Ifrach v. Neiman, 306 A.D.2d 380; Pajda v. Pedone, 303 A.D.2d 729; Lanza v. Carlick, 279 A.D.2d 613, 614; Passarelle v. Burger, 278 A.D.2d 294). Furthermore, the affirmation of the plaintiff's examining physician did not provide any explanation for the significant gap between the plaintiff's initial treatment and his subsequent visit to the examining physician ( see Francis v. Christopher, 302 A.D.2d 425; Dimenshteyn v. Caruso, 262 A.D.2d 348; Perez v. Velez, 253 A.D.2d 865).
FLORIO, J.P., KRAUSMAN, LUCIANO, TOWNES and RIVERA, JJ., concur.