Esther Thomas, appellant, v. WEEKS (2009)

Supreme Court, Appellate Division, Second Department, New York.

Lloyd THOMAS, plaintiff, Esther Thomas, appellant, v. Colin WEEKS, respondent, et al., defendants.

Decided: April 28, 2009

PETER B. SKELOS, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and CHERYL E. CHAMBERS, JJ. Martin & Colin, P.C., White Plains, N.Y. (William Martin of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff Esther Thomas appeals from an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated October 5, 2007, which granted the motion of the defendant Colin Weeks for summary judgment dismissing the complaint insofar as asserted by her against that defendant 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 defendant Colin Weeks met his prima facie burden of showing that the plaintiff Esther Thomas (hereinafter the appellant) did not sustain a serious injury 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 appellant did not raise a triable issue of fact.   The affirmation and annexed reports of Dr. Michael Daras, the appellant's treating neurologist, failed to raise a triable issue of fact.   While Daras noted significant range-of-motion limitations in the appellant's cervical spine during examinations in September 2003 and October 2003, and deemed the appellant's injuries permanent in his affirmation dated September 6, 2007, he failed to reconcile those findings with the findings he made on November 20, 2003, January 12, 2004, and July 19, 2007, where he found that the appellant had full range of motion in her cervical spine (see Carrillo v. DiPaola, 56 A.D.3d 712, 869 N.Y.S.2d 135;  Magarin v. Kropf, 24 A.D.3d 733, 807 N.Y.S.2d 398;  Powell v. Hurdle, 214 A.D.2d 720, 625 N.Y.S.2d 634;  Antorino v. Mordes, 202 A.D.2d 528, 609 N.Y.S.2d 273).   At no point in time did Daras ever test the appellant's left knee range of motion, and he found on several dates that the appellant had full range of motion in her lumbar spine.

Moreover, neither the appellant nor Daras adequately explained the 3 1/212-year gap in her treatment between January 2004 and July 2007 (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Strok v. Chez, 57 A.D.3d 887, 869 N.Y.S.2d 345;  Sapienza v. Ruggiero, 57 A.D.3d 643, 869 N.Y.S.2d 192).

The appellant's affidavit was insufficient to raise a triable issue of fact (see Sapienza v. Ruggiero, 57 A.D.3d 643, 869 N.Y.S.2d 192;  Sealy v. Riteway-1, Inc., 54 A.D.3d 1018, 1019, 865 N.Y.S.2d 129;  Shvartsman v. Vildman, 47 A.D.3d 700, 849 N.Y.S.2d 600).

Lastly, the appellant failed to submit competent medical evidence that the injuries she allegedly sustained in the subject accident rendered her unable to perform substantially all of her usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Rabolt v. Park, 50 A.D.3d 995, 858 N.Y.S.2d 197;  Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 846 N.Y.S.2d 613;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).