RODRIGUEZ v. HERBERT

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Supreme Court, Appellate Division, First Department, New York.

Felipe RODRIGUEZ, Plaintiff-Appellant, v. Jeanette J. HERBERT, et al., Defendants-Respondents.

Decided: November 21, 2006

TOM, J.P., ANDRIAS, SAXE, GONZALEZ, SWEENY, JJ. Robert W. Abrams, New York, for appellant. McCabe, Collins, McGeough & Fowler, LLP, Carle Place (Steven Morgenlender of counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 24, 2005, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Even though the time plaintiff spent under treatment by different physicians after his accident exceeds 90 days, he failed to establish, by competent medical evidence, that during this period he was prevented from performing substantially all of the material acts constituting his customary daily activities during at least 90 of the first 180 days following the accident (Insurance Law § 5102[d];  see Thompson v. Abbasi, 15 A.D.3d 95, 100-101, 788 N.Y.S.2d 48 [2005] ).   Plaintiff's deposition testimony excerpts are insufficient to raise a triable issue of fact.