ZINGER v. ZYLBERBERG (2006)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated December 9, 2005, which denied his motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The defendant established prima facie entitlement to judgment as a matter of law by tendering proof in evidentiary form that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject 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;  Giraldo v. Mandanici, 24 A.D.3d 419, 805 N.Y.S.2d 124;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49-50, 789 N.Y.S.2d 281).   In opposition, the plaintiffs failed to raise a triable issue of fact as to whether either plaintiff sustained a serious injury.   While the affirmed medical reports of the plaintiffs' examining physician showed limitations in the range of motion of the respective plaintiffs' cervical and lumbar spines based on recent examinations, the plaintiffs failed to proffer any medical evidence that was contemporaneous with the subject accident that showed a limitation in their range of motion (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, 864, 796 N.Y.S.2d 661;  Nemchyonok v. Peng Liu Ying, 2 A.D.3d 421, 767 N.Y.S.2d 811).   Their examining physician also failed to acknowledge the fact that both plaintiffs were involved in an auto accident in 2003, which occurred subsequent to the subject accident and before he examined them.   Thus, his findings were speculative that the spinal injuries they allegedly sustained were caused by the subject accident (see Tudisco v. James, 28 A.D.3d 536, 537, 813 N.Y.S.2d 482;  Bennett v. Genas, 27 A.D.3d 601, 601-602, 813 N.Y.S.2d 446;  Allyn v. Hanley, 2 A.D.3d 470, 471, 767 N.Y.S.2d 885). The plaintiffs also failed to explain their gaps in treatment (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Nemchyonok v. Peng Liu Ying, supra ).

As specifically related to the plaintiff Aleksandr Zinger, the plaintiffs' examining physician also failed to address the finding by the defendant's examining radiologist that Aleksandr's herniated disc at C5-6 was the result of degeneration unrelated to the subject accident (see Giraldo v. Mandanici, supra at 420, 805 N.Y.S.2d 124;  Lorthe v. Adeyeye, 306 A.D.2d 252, 253, 760 N.Y.S.2d 530;  Pajda v. Pedone, 303 A.D.2d 729, 730, 757 N.Y.S.2d 452).

Moreover, the plaintiffs failed to proffer any competent medical evidence that either plaintiff was unable to perform all of his or her daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).

Accordingly, the Supreme Court erred in denying the defendant's motion for summary judgment dismissing the complaint.