ROGERS v. CHIARELLI

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

Christopher S. ROGERS, et al., appellants, v. John E. CHIARELLI, et al., respondents.

Decided: August 02, 2004

MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, BARRY A. COZIER, and PETER B. SKELOS, JJ. Glynn and Mercep, LLP, Stony Brook, N.Y. (Bradley C. Abbott of counsel), for appellants. Neil L. Kanzer, Garden City, N.Y. (Lorraine M. Korth and Steven T. Farmer of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated September 9, 2003, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiffs Christopher S. Rogers and Joseph Rotolo did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants made a prima facie showing that the plaintiffs Christopher S. Rogers and Joseph A. Rotolo did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident through the submission of the deposition testimony and medical records of Rogers and Rotolo, and the affirmation of the defendants' examining physician (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).   In opposition, the plaintiffs submitted the affirmation of Rogers' physician, which was based upon an examination that took place approximately four years before the submission of the summary judgment motion (see Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  Kauderer v. Penta, 261 A.D.2d 365, 689 N.Y.S.2d 190), and failed to account for the fact that Rogers had injured his neck and back in a prior accident and in a subsequent accident (see Freese v. Maffetone, 302 A.D.2d 490, 756 N.Y.S.2d 70;  Finkelshteyn v. Harris, 280 A.D.2d 579, 721 N.Y.S.2d 90).   The plaintiffs failed to submit any evidence regarding Rotolo's alleged injuries in opposition to the motion.

Moreover, the plaintiffs failed to submit any competent medical evidence which would support a claim that either Rogers or Rotolo was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days following the subject accident as a result of the accident (see Sainte-Aime v. Ho, supra;  Jackson v. New York City Tr. Auth., 273 A.D.2d 200, 708 N.Y.S.2d 469).

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment.

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