BEHM v. RADOCCIA (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Werner, J.), dated April 2, 2003, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle 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;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affirmation of the plaintiff's physician failed to adequately explain the two-year gap between the first examination shortly after the accident and the second examination after the defendant moved for summary judgment, and failed to describe what medical treatments, if any, the plaintiff received in the interim (see Jimenez v. Kambli, 272 A.D.2d 581, 582, 708 N.Y.S.2d 460;  Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405).   Moreover, the physician did not satisfactorily take into account the plaintiff's medical history, which indicated preexisting herniated discs, and an automobile accident that occurred after the accident that forms the basis of this lawsuit.   Under these circumstances, the plaintiff failed to raise a triable issue of fact.

Accordingly, the defendant was entitled to summary judgment dismissing the complaint.