DANVERS v. NEW YORK CITY TRANSIT AUTHORITY (2008)

Judgment, Supreme Court, Bronx County (Alan J. Saks, J., and a jury), entered June 14, 2007, awarding damages for personal injuries and bringing up for review, inter alia, the denial of defendants' motion at the close of evidence for judgment as a matter of law, unanimously reversed, on the law, without costs, defendants' motion granted, and the complaint dismissed.   The Clerk is directed to enter judgment accordingly.

 Plaintiff failed to make out a prima facie case of serious injury under either a quantitative or qualitative analysis (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350-351, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ).   Concerning her lumbar spine, while plaintiff submitted evidence of herniated and bulging discs and a history of pain, an objective assessment of her range-of-motion limitations was not made until more than five years after the accident, too remote to permit an inference that her limitations were caused by the accident (see Medina v. Medina, 49 A.D.3d 335, 853 N.Y.S.2d 77 [2008] ).   Concerning her ankle, the arthroscopic surgery performed eight months after the accident to repair a partially torn ligament and a history of pain do not by themselves establish a serious injury (see O'Bradovich v. Mrijaj, 35 A.D.3d 274, 827 N.Y.S.2d 38 [2006] ), and, once again, the only objective evidence of range-of-motion limitations was produced by tests too remote in time from the accident to permit an inference that plaintiff's present limitations were caused by the accident.   In any event, plaintiff's evidence reveals an unexplained gap of two years and nine months in her primary physician's treatment, negating any showing of serious injury (see Otero v. 971 Only U, Inc., 36 A.D.3d 430, 828 N.Y.S.2d 331 [2007] ).