VITA v. Maria Elvira Torress Chavez, a/k/a Elvira Torres, et al., respondents. (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of Supreme Court, Queens County (LeVine, J.), dated July 23, 2003, which, upon an order of the same court dated June 18, 2003, granting the motion of the defendants Gilbert Perez and Arnaldo Gomez, and the separate motion of the defendant Maria Elvira Torress Chavez, a/k/a Elvira Torres, 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), dismissed the complaint insofar as asserted against those defendants.

ORDERED that the judgment is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

 The moving defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject 1998 motor vehicle 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).   The affidavit of the plaintiff's chiropractor was conclusory and failed to adequately indicate the basis for his finding that the plaintiff sustained a significant limitation in the use of her lumbar spine (see Kauderer v. Penta, 261 A.D.2d 365, 689 N.Y.S.2d 190;  Giannakis v. Paschilidou, 212 A.D.2d 502, 622 N.Y.S.2d 112).   In addition, neither the chiropractor nor the plaintiff's physician provided an adequate explanation for the three-year gap between the end of the plaintiff's treatments and their examinations (see Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405).

 Moreover, the plaintiff failed to submit any competent medical evidence to support a claim that she was unable to perform substantially all of her 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;  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 movants were entitled to summary judgment in their favor dismissing the complaint insofar as asserted against them.