Bella Cohen, respondent, v. ONE PRODUCTS INC (2006)

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Lewis, J.), entered December 22, 2005, which denied their motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Bella Cohen on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Bella Cohen is granted.

 The defendants established their prima facie entitlement to summary judgment dismissing the complaint insofar as asserted by the plaintiff Bella Cohen (hereinafter the plaintiff) by submitting, inter alia, the affirmed reports of three physicians whose opinions of the cervical and lumbar normalcy of the plaintiff were based upon specified objective tests (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In opposition, the plaintiff failed to meet the burden, which had shifted to her, of raising a triable issue of fact (see Zuckerman v. City of New York, supra;  Indig v. Finkelstein, 23 N.Y.2d 728, 729, 296 N.Y.S.2d 370, 244 N.E.2d 61).   The report of the plaintiff's radiologist was not affirmed, and therefore, it was insufficient to raise a triable issue of fact (see Vallejo v. Builders for Family Youth, Diocese of Brooklyn, 18 A.D.3d 741, 742, 795 N.Y.S.2d 712;  Pagano v. Kingsbury, 182 A.D.2d 268, 271, 587 N.Y.S.2d 692).   Furthermore, the affirmed report of the plaintiff's examining but not treating physician failed to proffer medical evidence that the limitations in motion he observed were contemporaneous with the accident that occurred almost three years earlier (see Ranzie v. Abdul-Massih, 28 A.D.3d 447, 448, 813 N.Y.S.2d 473;  Li v. Woo Sung Yun, 27 A.D.3d 624, 625, 812 N.Y.S.2d 604;  Suk Ching Yeung v. Rojas, 18 A.D.3d 863, 796 N.Y.S.2d 661;  Nemchyonok v. Peng Liu Ying, 2 A.D.3d 421, 767 N.Y.S.2d 811).

The plaintiffs' remaining contentions are without merit.