BERETE v. Jesus Vega, et al., Defendants.

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

Kabine BERETE, et al., Plaintiffs-Appellants, v. FORD MOTOR CREDIT COMPANY, et al., Defendants-Respondents, Jesus Vega, et al., Defendants.

Decided: May 23, 2006

TOM, J.P., MAZZARELLI, ANDRIAS, MARLOW, MALONE, JJ. Law Office of Scott B. Schwartz, PLLC, New York (Scott B. Schwartz of counsel), for appellants. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Allyson Avila of counsel), for Ford Motor Credit Company, respondent. James P. Nunemaker, Jr. & Associates, Uniondale (Joseph G. Gallo of counsel), for Randall A. Orozco and Sandro Sansotta, respondents.

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered January 9, 2006, which granted defendants' motion and cross motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants sustained their initial burden of showing the absence of a triable issue on whether the plaintiff driver had suffered a “serious injury” for No-Fault threshold purposes (Insurance Law § 5102[d] ), and plaintiffs failed to meet the burden that then shifted to them to show triable issues of fact (see Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ).   On the question of “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system,” defendants offered nonconclusory affidavits from medical experts who examined the accident victim and found no injury satisfying the statutory terms (see e.g. Henkin v. Fast Times Taxi, 307 A.D.2d 814, 763 N.Y.S.2d 297 [2003];  see also Gaddy, 79 N.Y.2d at 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   Even were we to find plaintiffs' opposition supported by nonconclusory medical opinion, plaintiffs failed to offer “some reasonable explanation” for the “cessation of treatment” of an allegedly serious injury (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ), which apparently resumed only so the treating physician could perform an expert evaluation at the request of plaintiffs' counsel.   As for the injury under the 90/180-day test, defendants sustained their initial burden and plaintiffs failed to come forward with objective evidence of a medically determined injury or impairment of a non-permanent nature (see Copeland v. Kasalica, 6 A.D.3d 253, 775 N.Y.S.2d 276 [2004];  Hewan v. Callozzo, 223 A.D.2d 425, 636 N.Y.S.2d 336 [1996] ).