LI v. WOO SUNG YUN (2006)

In an action to recover damages for personal injuries, the defendant Woo Sung Yun appeals, as limited by his brief, from so much of an order of Supreme Court, Kings County (Knipel, J.), dated January 19, 2005, as 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), and the defendants Kuen Tak Wong and Wai Lin Cheung separately appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground, inter alia, 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 one bill of costs to the defendants appearing separately and filing separate briefs, the motions are granted, and the complaint is dismissed.

The defendants established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (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;  Giraldo v. Mandanici, 24 A.D.3d 419, 805 N.Y.S.2d 124;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281).   In opposition, the plaintiff did not submit medical proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions in her spine or left knee (see Nemchyonok v. Peng Liu Ying, 2 A.D.3d 421, 767 N.Y.S.2d 811;  Ifrach v. Neiman, 306 A.D.2d 380, 760 N.Y.S.2d 866;  Pajda v. Pedone, 303 A.D.2d 729, 757 N.Y.S.2d 452;  Lanza v. Carlick, 279 A.D.2d 613, 719 N.Y.S.2d 707;  Passarelle v. Burger, 278 A.D.2d 294, 717 N.Y.S.2d 348).   Also, the affirmed report of the plaintiff's physician, which was based on an examination conducted over six years after the plaintiff's last medical treatment, did not explain the lengthy gap in treatment and, therefore, was insufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Ali v. Vasquez, 19 A.D.3d 520, 797 N.Y.S.2d 528;  Batista v. Olivo, 17 A.D.3d 494, 795 N.Y.S.2d 54).

In light of out determination, we need not reach the remaining contention of the defendants Wai Lin Cheung and Kuen Tak Wong.