GRANT v. FOFANA (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Glover, J.), dated August 5, 2003, which granted the separate motions of the defendant Mamadou Fofana and the defendants Henry A. Grant and Terry T. Tatum 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 affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

 The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting the plaintiff's deposition testimony and the affirmations of their examining physicians (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;  Hodges v. Jones, 238 A.D.2d 962, 661 N.Y.S.2d 159).   The affirmed report of the plaintiff's physician was insufficient to raise a triable issue of fact in opposition to the motions.

Neither the plaintiff nor her physician offered any explanation as to the gap of nearly 16 months between the conclusion of her medical treatments and his examination of the plaintiff for the first time in response to the defendants' motions (see Jimenez v. Kambli, 272 A.D.2d 581, 582, 708 N.Y.S.2d 460;   Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405).   Further, despite evidence in the plaintiff's medical history of treatment for lower back pain approximately five months before the instant accident, and despite his claim that he reviewed the plaintiff's medical records, the plaintiff's physician never mentioned the plaintiff's prior medical history, nor offered any other evidence as to the plaintiff's condition before the instant accident (see e.g. Dimenshteyn v. Caruso, 262 A.D.2d 348, 694 N.Y.S.2d 66).

In addition, it is clear from the report that the plaintiff's physician's findings of restrictions in motion were based solely upon the plaintiff's subjective complaints of pain (see Scheer v. Koubek, 70 N.Y.2d 678, 518 N.Y.S.2d 788, 512 N.E.2d 309;  Barrett v. Howland, 202 A.D.2d 383, 384, 608 N.Y.S.2d 681;  LeBrun v. Joyner, 195 A.D.2d 502, 600 N.Y.S.2d 262;  Coughlan v. Donnelly, 172 A.D.2d 480, 567 N.Y.S.2d 835).

 Finally, the plaintiff's claim that she was unable to return to work for two months following the accident was not supported by any competent medical evidence (see Sainte-Aime v. Ho, 274 A.D.2d 569, 570, 712 N.Y.S.2d 133;  Jackson v. New York City Tr. Auth., 273 A.D.2d 200, 201, 708 N.Y.S.2d 469;  Greene v. Miranda, 272 A.D.2d 441, 708 N.Y.S.2d 310;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919;  Bennett v. Reed, 263 A.D.2d 800, 693 N.Y.S.2d 738;  DiNunzio v. County of Suffolk, 256 A.D.2d 498, 499, 682 N.Y.S.2d 406).

Accordingly, the Supreme Court properly granted the motions for summary judgment dismissing the complaint.