DANTINI v. CUFFIE (2009)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Weber, J.), dated March 14, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

Once the defendants made their 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 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 burden shifted to the plaintiff to produce sufficient evidence to raise a triable issue of fact (see CPLR 3212).   The plaintiff failed to meet this burden.   The plaintiff failed to adequately explain the nearly three-year gap in medical treatments (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278;   Cervino v. Gladysz-Steliga, 36 A.D.3d 744, 829 N.Y.S.2d 169).   Moreover, the plaintiff's subjective complaints of pain were insufficient to establish the existence of a serious injury (see Rudas v. Petschauer, 10 A.D.3d 357, 781 N.Y.S.2d 120;  Coloquhoun v. 5 Towns Ambulette, Inc., 280 A.D.2d 512, 720 N.Y.S.2d 385;  LeBrun v. Joyner, 195 A.D.2d 502, 600 N.Y.S.2d 262), particularly where, as here, there were no objective medical findings to substantiate those complaints (see Carroll v. Jennings, 264 A.D.2d 494, 694 N.Y.S.2d 458).   Furthermore, the plaintiff failed to proffer competent medical evidence that she was unable to perform substantially all of 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;   DiNunzio v. County of Suffolk, 256 A.D.2d 498, 682 N.Y.S.2d 406).