| Guadalupe v Blondie Limo, Inc. |
| 2007 NY Slip Op 06729 [43 AD3d 669] |
| September 13, 2007 |
| Appellate Division, First Department |
| Genevieve Guadalupe, Appellant, v Blondie Limo, Inc., etal., Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered on or about May 25,2006, which granted defendants' motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.
Defendants established a prima facie entitlement to summary judgment by submittingevidence demonstrating that plaintiff did not sustain a serious injury as a result of the caraccident between the parties. Specifically, defendants submitted the affirmed report of aneurologist who, upon examining plaintiff and performing objective tests, concluded that she hada normal range of motion of the lumbar and cervical spine, despite positive MRI findings (see Thompson v Abbasi, 15 AD3d95, 96 [2005]). They also submitted plaintiff's bill of particulars and deposition testimony,which reveal that plaintiff was confined to bed and home for only a few weeks after the accident.
Plaintiff failed to raise a triable issue of fact that a serious injury was sustained within themeaning of Insurance Law § 5102 (d). Despite the positive MRI report, there were noobjective findings immediately following the accident to demonstrate any initial range-of-motionrestrictions on plaintiff's cervical and lumbar spine, or any detailed explanation for their omission(Thompson, 15 AD3d at 98). The quantitative range-of-motion assessment plaintiff didsubmit was made more than two years after the accident by a physician who examined her onlyon that one occasion (see Atkinson vOliver, 36 AD3d 552 [2007]). There is thus a failure of proof relating this doctor'sfindings to an accident that occurred more than two years prior to his examination.
Plaintiff also failed to raise a triable issue of fact as to whether she was incapacitated fromperforming substantially all of her usual and customary activities for at least 90 of the first 180days after the accident. The subjective claims of pain and "unsubstantiated claim of inability toperform [her] customary daily activities are insufficient to raise a triable issue of fact"(Thompson, 15 AD3d at 101). Concur—Friedman, J.P., Nardelli, Buckley, Sweenyand Malone, JJ.