MORRIS v. PASCALL (1999)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Held, J.), dated March 18, 1998, which denied her motion for summary judgment dismissing the complaint based upon the failure of the plaintiff to 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 affirmed reports authored by Dr. Stephen Gilbert and Dr. George Nimberg which the defendant submitted in support of her motion for summary judgment made out a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Although the affirmed report of the plaintiff's medical expert, Dr. Jean Claude Compas, which the plaintiff submitted in his opposition to the motion, stated that the plaintiff had sustained a 10% reduction in the range of motion of his cervical spine, the report was prepared approximately six years after the medical examinations upon which the opinions therein were based.   Thus, there was insufficient proof of the duration of the alleged impairment (see, Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102).   Further, the plaintiff's unsubstantiated response at his deposition concerning the amount of time that he missed from his employment was insufficient to raise a triable issue of fact as to whether he was prevented from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the impairment (see, Insurance Law § 5102[d];  Caruso v. Rotondi, 248 A.D.2d 425, 668 N.Y.S.2d 948).

MEMORANDUM BY THE COURT.