SAETIA v. VIP RENOVATIONS CORP (2009)

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Lane, J.), entered July 17, 2008, as granted the defendants' motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) and denied, as academic, the plaintiffs' cross motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On the evening of September 9, 2006, the plaintiff John Palomaria was a front-seat passenger in a motor vehicle being operated by the plaintiff Godwin Saetia on the Williamsburg Bridge, when it was struck from behind by a motor vehicle operated by the defendant Christos Konstans and owned by the defendant VIP Renovations Corp. The plaintiffs subsequently commenced this action to recover damages for the resulting personal injuries. After issue was joined, the defendants moved for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs' injuries were not serious, through the affirmed medical reports of their orthopedist, radiologist, and neurologist, who examined the plaintiffs and concluded that their orthopedic and neurological examinations were normal (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 352, 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). At their depositions, the plaintiffs testified that, as a result of the subject motor vehicle accident, they missed little, if any time from their college classes. The plaintiffs' alleged injuries did not prevent them from performing “substantially all” of the material acts constituting their usual and customary daily activities during at least 90 out of the first 180 days following the accident (see Geliga v. Karibian, Inc., 56 A.D.3d 518, 519, 867 N.Y.S.2d 519; Sanchez v. Williamsburg Volunteer of Hatzolah, Inc., 48 A.D.3d 664, 852 N.Y.S.2d 287; Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 51-52, 789 N.Y.S.2d 281).

In opposition, the plaintiffs failed to raise a triable issue of fact (see CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Lea v. Cucuzza, 43 A.D.3d 882, 842 N.Y.S.2d 468). The range-of-motion findings which were set forth in the “physicians' affirmations” prepared by the plaintiffs' treating physician were not contemporaneous with the subject accident (see Richards v. Tyson, 64 A.D.3d 760, 761, 883 N.Y.S.2d 575; Morris v. Edmond, 48 A.D.3d 432, 850 N.Y.S.2d 641). In view of the determinations on the defendant's motion, the plaintiffs' cross motion for summary judgment on the issue of liability was rendered academic.

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint and denied, as academic, the plaintiffs' cross motion for summary judgment on the issue of liability.