WEI SAN HSU v. BRISCOE PROTECTIVE SYSTEMS INC (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), entered June 29, 2006, 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.

The defendants established, prima facie, their entitlement to judgment as a matter of law by tendering proof in admissible form that the plaintiff did not sustain a serious injury to her jaw 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, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).  In opposition, the plaintiff failed to raise a triable issue of fact.  Neither the plaintiff nor her examining dentist adequately explained the lengthy gap in the plaintiff's treatment between her termination of treatment two to three months post-accident and the evaluation by her examining dentist in October 2005 (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Zinger v. Zylberberg, 35 A.D.3d 851, 828 N.Y.S.2d 128;  Hasner v. Budnik, 35 A.D.3d 366, 826 N.Y.S.2d 387;  Caracci v. Miller, 34 A.D.3d 515, 823 N.Y.S.2d 681).  Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.