MANON v. DOUCOURE (2009)

Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered December 17, 2007, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a “serious injury” within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established prima facie that plaintiff did not sustain a serious injury of either a permanent or a non-permanent nature by submitting medical evidence indicating that his spinal and shoulder injuries had resolved within two months after the accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ).   In opposition, plaintiff failed to adequately explain the three-year gap in his treatment (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).   As to the “90/180” category, plaintiff failed to support his claim with objective evidence of a “medically determined injury or impairment of a non-permanent nature” (Insurance Law § 5102[d] ) (Toure at 357, 746 N.Y.S.2d 865, 774 N.E.2d 1197).