MUNOZ v. KOYFMAN (2007)

In an action to recover damages for personal injuries, the plaintiffs, Rosemary Munoz individually, and Sebastian Munoz, an infant under the age of 14 by his mother and natural guardian Rosemary Munoz, appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.), dated September 5, 2006, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Rosemary Munoz individually, on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the appeal by the plaintiff Sebastian Munoz, an infant under the age of 14 by his mother and natural guardian Rosemary Munoz, is dismissed, without costs or disbursements, as he is not aggrieved by the portion of the order appealed from (see CPLR 5511);  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The Supreme Court correctly concluded that the defendants met their prima facie burden of establishing that the plaintiff Rosemary Munoz (hereinafter Rosemary) 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;  see also Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49–50, 789 N.Y.S.2d 281).

 In opposition, the affidavit of Rosemary's treating chiropractor failed to raise a triable issue of fact.  His conclusions were speculative because he failed to account for the numerous accidents, both before and after the subject one, in which Rosemary injured the same parts of her body that she alleges were injured in this action (see Moore v. Sarwar, 29 A.D.3d 752, 753, 816 N.Y.S.2d 503;  Tudisco v. James, 28 A.D.3d 536, 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).  Moreover, Rosemary never explained the lengthy gap in her treatment (see Berktas v. McMillian, 40 A.D.3d 563, 564, 835 N.Y.S.2d 388;  Waring v. Guirguis, 39 A.D.3d 741, 742, 834 N.Y.S.2d 290;  Phillips v. Zilinsky, 39 A.D.3d 728, 729, 834 N.Y.S.2d 299;  Allyn v. Hanley, 2 A.D.3d 470, 470–471, 767 N.Y.S.2d 885;  see also Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278).  Rosemary's reliance on her magnetic resonance imaging reports was insufficient, on its own, to raise a triable issue of fact since the radiologist who prepared them did not establish what caused the pathology described therein (see Collins v. Stone, 8 A.D.3d 321, 322, 778 N.Y.S.2d 79).  The statements contained in Rosemary's self-serving affidavit were insufficient to raise a triable issue of fact as well (see Garcia v. Solbes, 41 A.D.3d 426, 427, 838 N.Y.S.2d 146;  Fisher v. Williams, 289 A.D.2d 288, 289, 734 N.Y.S.2d 497).  Finally, Rosemary failed to proffer competent medical evidence that she sustained a medically determined injury of a nonpermanent nature which prevented her, for 90 of the 180 days following the subject accident, from performing her usual and customary activities (see Sainte–Aime v. Ho, 274 A.D.2d 569, 570, 712 N.Y.S.2d 133).