MAFFEI v. SANTIAGO (2009)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Nicolai, J.), dated November 25, 2008, which denied their motion for summary judgment dismissing the complaint 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 defendants' motion for summary judgment dismissing the complaint is granted.

The defendants met their prima facie burden of showing 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, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff principally relied on the affidavit of her treating neurologist, Dr. Michael Daras. Dr. Daras' affidavit was insufficient to raise a triable issue of fact. Neither the plaintiff nor Dr. Daras explained the 18-month gap in her treatment between March 2006 and September 2007 (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278; Ponciano v. Schaefer, 59 A.D.3d 605, 873 N.Y.S.2d 212; Garcia v. Lopez, 59 A.D.3d 593, 872 N.Y.S.2d 719; Pompey v. Carney, 59 A.D.3d 416, 872 N.Y.S.2d 541; Sapienza v. Ruggiero, 57 A.D.3d 643, 869 N.Y.S.2d 192). Moreover, Dr. Daras failed to acknowledge in his affidavit that the plaintiff reinjured her back in a subsequent accident, and therefore his conclusion that the limitations he noted in the plaintiff's lumbar spine were caused by the subject accident was rendered speculative (see Barnes v. Cisneros, 15 A.D.3d 514, 790 N.Y.S.2d 513; Mooney v. Edwards, 12 A.D.3d 424, 784 N.Y.S.2d 599). Furthermore, Dr. Daras failed to account for notations in the plaintiff's medical records indicating that she had full range of motion in her neck, back, and ankles within two months of the subject accident (see Kaplan v. Vanderhans, 26 A.D.3d 468, 809 N.Y.S.2d 582; Brown v. Tairi Hacking Corp., 23 A.D.3d 325, 804 N.Y.S.2d 756).

The medical reports of Dr. James McWilliam were without any probative value in opposing the defendants' motion because they were unaffirmed (see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76; Niles v. Lam Pakie Ho, 61 A.D.3d 657, 877 N.Y.S.2d 139; Uribe-Zapata v. Capallan, 54 A.D.3d 936, 864 N.Y.S.2d 118; Patterson v. N.Y. Alarm Response Corp., 45 A.D.3d 656, 850 N.Y.S.2d 114; Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71; Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396; Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).

Finally, the plaintiff's affidavit was insufficient to raise a triable issue of fact (see Thomas v. Weeks, 61 A.D.3d 961, 878 N.Y.S.2d 182; Luizzi-Schwenk v. Singh, 58 A.D.3d 811, 872 N.Y.S.2d 176; Gochnour v. Quaremba, 58 A.D.3d 680, 871 N.Y.S.2d 703).