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

Jose DIAZ, appellant, v. SPEEDY RENT A CAR, et al., respondents.

Decided: March 29, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Peter D. Morris, New York, N.Y. (James Gear of counsel), for appellant. George F. Sacco, Staten Island, N.Y., for respondents Speedy Rent A Car and Robin Dayani. Morenus, Marchese & Cardoza, Westbury, N.Y. (Thomas B. Goren of counsel), for respondents Michael Katcher and Jose Ramirez.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated February 6, 1998, which granted the separate motions of the defendants Speedy Rent A Car and Robin Dayani, and Michael Katcher and Jose Ramirez for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

We agree with the Supreme Court that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see, Hawkins v. Montero, 250 A.D.2d 813, 671 N.Y.S.2d 1013;  Medina v. Zalmen Reis & Assocs., 239 A.D.2d 394, 658 N.Y.S.2d 36).

The hospital emergency room records indicate that the plaintiff sustained no fractures, dislocations, or spinal injuries, and that he was discharged the day of the accident with a diagnosis consisting solely of “strains”.   Moreover, it is undisputed that the plaintiff sought no treatment for a period of some two years after the accident, which occurred in September 1995.

In opposition to the defendants' motions, the plaintiff submitted the affidavit of a chiropractor which was based on an examination conducted approximately two years after the accident occurred.   The affidavit identified a series of soft tissue injuries, but did not indicate that any objective testing procedures were conducted in conjunction with the examination (see, Duryea v. Zung, 185 A.D.2d 912, 587 N.Y.S.2d 384).   Further, the affidavit contained no statement that the chiropractor ever treated the plaintiff, mentioned no ongoing or prior history of treatment by any other health care provider, and did not provide any explanation for the two-year gap between the plaintiff's emergency room treatment and the examination (see, Dyagi v. Newburgh Auto Auction, 251 A.D.2d 619, 675 N.Y.S.2d 872;  Medina v. Zalmen Reis & Assocs., supra, at 394-395, 658 N.Y.S.2d 36).

Since the defendants established their entitlement to judgment as a matter of law, and the plaintiff's submissions failed to raise an issue of fact that he had sustained a serious injury, the court properly granted the defendants' motions to dismiss the complaint (see, Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Stipes v Kopf, 255 A.D.2d 502, 680 N.Y.S.2d 175).


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