BARZEY v. CLARKE (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated October 26, 2004, as granted those branches of the separate motions of the defendant Zenobia Clarke and the defendants Evan Moran and Atlas Roll-Off Corporation which were for summary judgment dismissing the complaint insofar as asserted against them 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 affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The defendants 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 (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).   In opposition, the plaintiff failed to raise a triable issue of fact.   The affirmed medical reports of the plaintiff's treating physician, and examining orthopedist were insufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury since neither report was based on a recent examination of the plaintiff (see Constantinou v. Surinder, 8 A.D.3d 323, 777 N.Y.S.2d 708;  Elgendy v. Nieradko, 307 A.D.2d 251, 762 N.Y.S.2d 275;  Kauderer v. Penta, 261 A.D.2d 365, 689 N.Y.S.2d 190).   The affirmed report of the plaintiff's other examining orthopedist also was insufficient to raise a triable issue of fact since he failed to adequately discuss or explain a lengthy gap in the plaintiff's treatment (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Batista v. Olivo, 17 A.D.3d 494, 795 N.Y.S.2d 54;  Barnes v. Cisneros, 15 A.D.3d 514, 790 N.Y.S.2d 513;  Allyn v. Hanley, 2 A.D.3d 470, 767 N.Y.S.2d 885).   In addition, it was unclear as to when that orthopedist examined the plaintiff.

Moreover, there was no competent medical evidence to support a claim that the plaintiff was unable to perform substantially all of his 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;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919;  DiNunzio v. County of Suffolk, 256 A.D.2d 498, 682 N.Y.S.2d 406).