BATISTA v. OLIVO (2005)

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated March 4, 2004, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs.

 In support of their separate motions for summary judgment, the defendants submitted the deposition testimony of the plaintiffs (see Hodges v. Jones, 238 A.D.2d 962, 661 N.Y.S.2d 159), as well as the affirmed medical reports (see Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692;  Gleason v. Huber, 188 A.D.2d 581, 591 N.Y.S.2d 69) of an orthopedist, a neurologist, and a radiologist, demonstrating that neither of the plaintiffs sustained a serious injury (see Insurance Law § 5102[d] ) as a result of the subject automobile accident.   This evidence was sufficient to establish a prima facie case for the defendants (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 plaintiffs therefore were required to come forward with objective medical findings based on a recent examination verifying their subjective complaints of pain and limitations of motion (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, any significant lapse of time between the conclusion of the medical treatments of the plaintiffs after the accident and the physical examination conducted by the plaintiffs' expert had to be adequately explained (see Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405).   Neither the plaintiffs nor their examining physician offered any explanation or discussion concerning the approximately 2 1/212 year gap between the conclusion of their physical therapy treatments and the date of the examination (see Jimenez v. Kambli, 272 A.D.2d 581, 708 N.Y.S.2d 460;  Smith v. Askew, supra ).

Finally, neither plaintiff submitted any medical evidence to raise a triable issue of fact as to their inability to perform substantially all of their daily activities for not less than 90 of the first 180 days subsequent to the accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919;  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.