THOMASON v. THOMASON (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), entered April 13, 2006, which granted the motion of the defendants Tyshja Thomason and Leandra Thomason, and the separate motion of the defendant Sherry Tauber, for summary judgment dismissing the complaint insofar as asserted against them 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 met their respective prima facie burdens on their motions for summary judgment by demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (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;  Yakubov v. CG Trans Corp., 30 A.D.3d 509, 817 N.Y.S.2d 353;  Bell v. Rameau, 29 A.D.3d 839, 814 N.Y.S.2d 534;  Luckey v. Bauch, 17 A.D.3d 411, 792 N.Y.S.2d 624;   Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49-50, 789 N.Y.S.2d 281).   In opposition, the plaintiff failed to raise a triable issue of fact (see Li v. Woo Sung Yun, 27 A.D.3d 624, 812 N.Y.S.2d 604;  Nemchyonok v. Peng Liu Ying, 2 A.D.3d 421, 767 N.Y.S.2d 811;  Ifrach v. Neiman, 306 A.D.2d 380, 760 N.Y.S.2d 866).   For example, the affirmed medical report of the plaintiff's examining physician, which was based on an examination of the plaintiff conducted about 2 1/212 years after the accident, specified the degrees in the plaintiff's cervical spine range of motion, but did so without comparing those findings to the normal range of motion (see Faulkner v. Steinman, 28 A.D.3d 604, 813 N.Y.S.2d 529;  Baudillo v. Pam Car & Truck Rental, Inc., 23 A.D.3d 420, 803 N.Y.S.2d 922;  Manceri v. Bowe, 19 A.D.3d 462, 463, 798 N.Y.S.2d 441).

Finally, 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 Faulkner v. Steinman, supra;  Davis v. New York City Tr. Auth., 294 A.D.2d 531, 742 N.Y.S.2d 658;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).