KRAVTSOV v. WONG (2004)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated September 15, 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 submission of the affirmed medical reports of an orthopedist and a neurologist who examined the plaintiff two years after the accident and found no evidence of a disability, impairment, or restriction (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.   It was clear from the medical evidence submitted by the plaintiff that he had sustained, at most, soft tissue injuries which were of an insignificant nature (see Scheer v. Koubek, 70 N.Y.2d 678, 518 N.Y.S.2d 788, 512 N.E.2d 309;  Pajda v. Pedone, 303 A.D.2d 729, 757 N.Y.S.2d 452;  Barrett v. Howland, 202 A.D.2d 383, 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).

Moreover, the plaintiff failed to submit any competent medical evidence which would have supported a claim that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days following 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.