KEENA v. TRAPPEN

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

Kathleen KEENA, et al., Appellants, v. Barbara TRAPPEN, Respondent.

Decided: May 13, 2002

FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT and STEPHEN G. CRANE, JJ. Robert C. Agee, Bronxville, N.Y., for appellants. Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (Alexandra C. Karamitsos of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Colabella, J.), entered February 7, 2001, which, in effect, granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Kathleen Keena did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

 The plaintiffs failed to rebut the defendant's prima facie showing that the plaintiff Kathleen Keena did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  The affirmation of the injured plaintiff's treating physician stated that he only diagnosed cervical and lumbar sprains, which do not rise to the level of serious injuries (see Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Lebron v. Camacho, 251 A.D.2d 295, 671 N.Y.S.2d 1025).   Moreover, the treating physician's projections of permanent injury lacked probative value, since the affirmation is dated more than three years after the last examination of the plaintiff (see Tobiolo v. Friedman, 283 A.D.2d 483, 724 N.Y.S.2d 651).   The affidavit of the injured plaintiff's chiropractor, prepared almost three years after the last examination of the injured plaintiff, was likewise insufficient to raise a triable issue of fact (see Bidetto v. Williams, 276 A.D.2d 516, 713 N.Y.S.2d 764).

 Finally, the plaintiffs failed to establish that the injured plaintiff sustained an “medically determined injury” which prevented her from performing “substantially all” of her “usual and customary daily activities” for 90 or more days out of the first 180 days “immediately following” her accident (Insurance Law § 5102[d] ).  Her affidavit did not specify her “usual and customary daily activities” before the accident, or which of those activities she was unable to perform after the accident (see Yagliyan v. Gun Shik Yang, 241 A.D.2d 518, 663 N.Y.S.2d 991).   She did not submit a physician's affidavit substantiating the existence of a “medically determined” injury producing the alleged impairment of her activities (see Insurance Law § 5102[d];  Ryan v. Xuda, 243 A.D.2d 457, 663 N.Y.S.2d 220).

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