MALDONADO v. YING LI (2004)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated August 11, 2003, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury through the affirmations of their examining orthopedist, neurologist, and radiologist (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).   In opposition, the plaintiff failed to raise a triable issue of fact.   The affirmation of the plaintiff's physician failed to cite the objective tests he performed to measure the plaintiff's limitation of motion (see Jimenez v. Kambli, 272 A.D.2d 581, 708 N.Y.S.2d 460;  Kauderer v. Penta, 261 A.D.2d 365, 689 N.Y.S.2d 190;  Giannakis v. Paschilidou, 212 A.D.2d 502, 622 N.Y.S.2d 112).   Further, the plaintiff's physician failed to address in his affirmation the nearly three-year gap between the end of his medical treatment and subsequent re-examination of the plaintiff (see Jimenez v. Kambli, supra;  Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405).   Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.