HABER v. ULLAH (2010)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Saitta, J.), entered May 14, 2009, 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;  see also Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49-50, 789 N.Y.S.2d 281).   In opposition, the plaintiff failed to raise a triable issue of fact.   The medical submissions of Dr. Donald M. Kastenbaum were insufficient to raise a triable issue of fact since they were unaffirmed (see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Uribe-Zapata v. Capallan, 54 A.D.3d 936, 864 N.Y.S.2d 118;  Choi Ping Wong v. Innocent, 54 A.D.3d 384, 864 N.Y.S.2d 435;  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).   Moreover, the plaintiff failed to adequately explain the cessation of his medical treatment after 2004 (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Shaji v. City of New Rochelle, 66 A.D.3d 760, 886 N.Y.S.2d 764;  Ciancio v. Nolan, 65 A.D.3d 1273, 885 N.Y.S.2d 767).   Furthermore, the plaintiff failed to submit competent medical evidence that the injuries he allegedly sustained as a result of the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days thereafter (see Ponciano v. Schaefer, 59 A.D.3d 605, 873 N.Y.S.2d 212;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).