GOUSGOULAS v. MELENDEZ

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

Patricia GOUSGOULAS, appellant, v. Antonio MELENDEZ, respondent.

Decided: September 20, 2004

FRED T. SANTUCCI, J.P., HOWARD MILLER, DANIEL F. LUCIANO, STEPHEN G. CRANE, and ROBERT A. SPOLZINO, JJ. Litman & Litman, P.C., New York, N.Y. (Jeffrey E. Litman of counsel), for appellant. Abrams, Gorelick, Friedman & Jacobson, P.C., New York, N.Y. (Siobhan M. Forde of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated September 23, 2003, which granted the defendant's 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 affirmed, with costs.

 The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) through the affirmations of an orthopedist and a neurologist who examined the plaintiff and determined that there was no disability, restriction, or limitation as a result of the subject motor vehicle 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affirmation of the plaintiff's orthopedist submitted in opposition to the defendant's motion was insufficient to raise a triable issue of fact.   It is readily apparent that the affirmation was designed merely to tailor the plaintiff's claim to meet statutory requirements (see Powell v. Hurdle, 214 A.D.2d 720, 625 N.Y.S.2d 634;  Giannakis v. Paschilidou, 212 A.D.2d 502, 503, 622 N.Y.S.2d 112), and is notable for its complete lack of any verified objective medical findings (see Carroll v. Jennings, 264 A.D.2d 494, 495, 694 N.Y.S.2d 458;   Kauderer v. Penta, 261 A.D.2d 365, 366, 689 N.Y.S.2d 190).

 Moreover, the plaintiff's claim that she was unable to return to work for a year and a half following the accident was not supported by any competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days as a result of the subject accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 570, 712 N.Y.S.2d 133;  Jackson v. New York City Tr. Auth., 273 A.D.2d 200, 201, 708 N.Y.S.2d 469;  Greene v. Miranda, 272 A.D.2d 441, 442, 708 N.Y.S.2d 310;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919;  Bennett v. Reed, 263 A.D.2d 800, 801, 693 N.Y.S.2d 738;  DiNunzio v. County of Suffolk, 256 A.D.2d 498, 499, 682 N.Y.S.2d 406). Indeed, the plaintiff failed to submit any evidence concerning her medical condition following the accident.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

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