CHERY v. JONES (2009)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Garvey, J.), dated April 14, 2008, which granted the defendants' 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).

ORDERED that the order is affirmed, with costs.

 The defendants established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident through the affirmed medical reports of their examining orthopedist and radiologist (see Kurin v. Zyuz, 54 A.D.3d 902, 864 N.Y.S.2d 151;  Passaretti v. Ping Kwok Yung, 39 A.D.3d 517, 835 N.Y.S.2d 224;  Faulkner v. Steinman, 28 A.D.3d 604, 813 N.Y.S.2d 529;  Fryar v. First Student, Inc., 21 A.D.3d 525, 800 N.Y.S.2d 582;  Meyers v. Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773;  McCauley v. Ross, 298 A.D.2d 506, 748 N.Y.S.2d 409).   The plaintiff's submissions in opposition failed to raise a triable issue of fact.   The affirmations of the plaintiff's treating physicians were based upon examinations of the plaintiff made nearly three years prior to the motion for summary judgment (see Diaz v. Lopresti, 57 A.D.3d 832, 870 N.Y.S.2d 408;  Sapienza v. Ruggiero, 57 A.D.3d 643, 869 N.Y.S.2d 192;  Carrillo v. DiPaola, 56 A.D.3d 712, 869 N.Y.S.2d 135;  Cornelius v. Cintas Corp., 50 A.D.3d 1085, 857 N.Y.S.2d 637;  Wright v. Rodriguez, 49 A.D.3d 532, 855 N.Y.S.2d 147), and the affirmation of the plaintiff's orthopedic surgeon failed to address the findings of the defendants' examining radiologist that the magnetic resonance imagings of the plaintiff's cervical and lumbar spine and right shoulder, taken shortly after the accident, did not reveal any post-traumatic changes, but only long-standing degenerative conditions (see Ciordia v. Luchian, 54 A.D.3d 708, 864 N.Y.S.2d 74;  Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 846 N.Y.S.2d 613;  Khan v. Finchler, 33 A.D.3d 966, 824 N.Y.S.2d 340).   Furthermore, the plaintiff failed to proffer competent medical evidence that he was unable to perform substantially all of his usual and customary daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Leeber v. Ward, 55 A.D.3d 563, 865 N.Y.S.2d 614;  Kurin v. Zyuz, 54 A.D.3d 902, 864 N.Y.S.2d 151;  Jones v. Gooding, 50 A.D.3d 968, 856 N.Y.S.2d 661;  Amato v. Fast Repair Inc., 42 A.D.3d 477, 840 N.Y.S.2d 394).