CANTANZANO v. MEI (2004)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated November 17, 2003, as 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 insofar as appealed from, 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 within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affirmations of the plaintiff's physicians submitted in opposition to the defendants' motion were insufficient to raise a triable issue of fact.   The findings of the physicians who treated the plaintiff immediately after the accident were vague and conclusory (see Kauderer v. Penta, 261 A.D.2d 365, 689 N.Y.S.2d 190;  Carroll v. Jennings, 264 A.D.2d 494, 694 N.Y.S.2d 458).   Moreover, the findings of limitations in the cervical spine by the expert who examined the plaintiff for the first time 3 1/212 years after the accident were refuted by the medical records that showed that the plaintiff had a “good range of motion” by mid-July of 2000, three years before the expert's examination.

The plaintiff failed to submit any competent medical evidence which would have supported a claim that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days as a result of the subject accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  Jackson v. New York City Tr. Auth., 273 A.D.2d 200, 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 defendants were entitled to summary judgment dismissing the complaint.