NICHOLSON v. ALLEN (2009)

In an action to recover damages for personal injuries, the defendant Rudolph Allen appeals from an order of the Supreme Court, Kings County (Martin, J.), dated March 17, 2008, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him 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, and the motion for summary judgment dismissing the complaint is granted.

 The defendant Rudolph Allen (hereinafter the defendant) established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident through the affirmed medical reports of his examining neurologist, orthopedist, and radiologist (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;  Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180;  Geliga v. Karibian, Inc., 56 A.D.3d 518, 867 N.Y.S.2d 519;  O'Shea v. Johnson, 49 A.D.3d 614, 853 N.Y.S.2d 608;  Kivelowitz v. Calia, 43 A.D.3d 1111, 843 N.Y.S.2d 145;  Porto v. Blum, 39 A.D.3d 614, 833 N.Y.S.2d 245).   Contrary to the Supreme Court's determination, the plaintiff failed to raise a triable issue of fact.   The affidavit of the plaintiff's treating chiropractor was based upon examinations of the plaintiff he made nearly four years prior to the motion for summary judgment, and not upon any recent examination (see Diaz v. Lopresti, 57 A.D.3d 832, 870 N.Y.S.2d 408;  Sapienza v. Ruggiero, 57 A.D.3d 643, 869 N.Y.S.2d 192;  Carrillo v. DiPaola, 56 A.D.3d 712, 869 N.Y.S.2d 135;  Cornelius v. Cintas Corp., 50 A.D.3d 1085, 857 N.Y.S.2d 637;  Wright v. Rodriguez, 49 A.D.3d 532, 855 N.Y.S.2d 147).   The affidavit also failed to address the findings of the defendant's examining radiologist that the magnetic resonance images of the plaintiff's lumbar spine, taken three months after the accident, did not reveal any post-traumatic changes, but only long-standing degenerative conditions (see Ciordia v. Luchian, 54 A.D.3d 708, 864 N.Y.S.2d 74;  Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 846 N.Y.S.2d 613;  Khan v. Finchler, 33 A.D.3d 966, 824 N.Y.S.2d 340), and failed to acknowledge the fact that the plaintiff had been injured in two prior automobile accidents (see Cornelius v. Cintas Corp., 50 A.D.3d 1085, 857 N.Y.S.2d 637;  Laurent v. McIntosh, 49 A.D.3d 820, 854 N.Y.S.2d 228;  Wright v. Rodriguez, 49 A.D.3d 532, 855 N.Y.S.2d 147;  Luciano v. Luchsinger, 46 A.D.3d 634, 847 N.Y.S.2d 622;  Vidor v. Davila, 37 A.D.3d 826, 830 N.Y.S.2d 772).   Furthermore, the plaintiff failed to proffer competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Leeber v. Ward, 55 A.D.3d 563, 865 N.Y.S.2d 614;  Kurin v. Zyuz, 54 A.D.3d 902, 864 N.Y.S.2d 151;  Jones v. Gooding, 50 A.D.3d 968, 856 N.Y.S.2d 661;  Amato v. Fast Repair Inc., 42 A.D.3d 477, 840 N.Y.S.2d 394).