SUK CHING YEUNG v. ROJAS

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

SUK CHING YEUNG, respondent, v. Guillermo ROJAS, et al., appellants.

Decided: May 31, 2005

A. GAIL PRUDENTI, P.J., ROBERT W. SCHMIDT, FRED T. SANTUCCI, DANIEL F. LUCIANO, and ROBERT A. SPOLZINO, JJ. Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellant Guillermo Rojas. Thomas Torto, New York, N.Y., for appellants Yi Ye Zhong and Ke Xing Li.

In an action to recover damages for personal injuries, the defendant Guillermo Rojas appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated October 15, 2004, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him, and the defendants Yi Ye Zhong and Ke Xing Li separately appeal from so much of the same order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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 reversed insofar as appealed from, on the law, with one bill of costs payable to the defendants appearing separately and filing separate briefs, the motions are granted, and the complaint is dismissed.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) from the subject accident (see Insurance Law § 5102[d];  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281;  Meely v. 4 G's Truck Renting Co., 16 A.D.3d 26, 789 N.Y.S.2d 277;  Paul v. Trerotola, 11 A.D.3d 441, 782 N.Y.S.2d 773;  Grossman v. Wright, 268 A.D.2d 79, 84, 707 N.Y.S.2d 233).

In opposition, the plaintiff failed to present any medical proof that was contemporaneous with the accident showing any initial range of motion restrictions in her spine (see Nemchyonok v. Peng Liu Ying, 2 A.D.3d 421, 767 N.Y.S.2d 811;  Ifrach v. Neiman, 306 A.D.2d 380, 380-381, 760 N.Y.S.2d 866).   The report of the plaintiff's treating physician was not affirmed and thus, did not constitute competent proof of her injuries (see CPLR 2106;  Bourgeois v. North Shore Univ. Hosp. at Forest Hills, 290 A.D.2d 525, 526, 737 N.Y.S.2d 101;  cf. Loadholt v. New York City Tr. Auth., 12 A.D.3d 352, 783 N.Y.S.2d 660;  compare Kearse v. New York City Tr. Auth., supra ).   In addition, the report of another doctor was based on an examination of the plaintiff approximately 4 years and 9 months after the accident.   Under the circumstances, the Supreme Court should have granted the defendants' motions for summary judgment.

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