| Abreu v Bushwick Bldg. Prods. & Supplies, LLC |
| 2007 NY Slip Op 06938 [43 AD3d 1091] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Fabio Abreu, Appellant, v Bushwick Building Products &Supplies, LLC, et al., Respondents. |
—[*1] Vincent P. Crisci (Goldman & Grossman, New York, N.Y. [Eleanor R. Goldman and Jay S.Grossman] of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Harkavy, J.), dated September 27, 2006, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants established their prima facie entitlement to judgment as a matter of law byshowing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, theplaintiff failed to raise a triable issue of fact. The plaintiff's hospital records were without anyprobative value in opposing the defendants' motion since those records were uncertified (see Mejia v DeRose, 35 AD3d 407[2006]). Moreover, neither the plaintiff nor his treating physician adequately explained the gap inhis treatment between the time he stopped treatment five months after the accident and his mostrecent examination on February 13, 2006 (see Pommells v Perez, 4 NY3d 566, 574 [2005]; see also Berktas v McMillian, 40AD3d 563 [2007]; Waring vGuirguis, 39 AD3d 741 [2007]; Phillips v Zilinsky, 39 AD3d 728 [2007]). The plaintiff's owndeposition testimony was fatal to his cause of action in this respect since the plaintiff testifiedthat he stopped [*2]treatment after five months because he feltbetter. Furthermore, the plaintiff's treating physician failed to address the finding of thedefendants' expert radiologist attributing the condition of the plaintiff's cervical and lumbar spineto degenerative changes. This rendered speculative the plaintiff's treating physician's opinion thatthe plaintiff's lumbar and cervical conditions were caused by the subject motor vehicle accident(see Giraldo v Mandanici, 24 AD3d419 [2005]; Lorthe v Adeyeye, 306 AD2d 252 [2003]; Pajda v Pedone, 303AD2d 729 [2003]; Ginty v MacNamara, 300 AD2d 624 [2002]). In addition, the plaintifffailed to submit any competent medical evidence that he was unable to perform substantially allof his daily activities for not less than 90 of the first 180 days subsequent to the subject accident(see Nociforo v Penna, 42 AD3d514 [2007]; Felix v New York CityTr. Auth., 32 AD3d 527 [2006]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).Schmidt, J.P., Spolzino, Skelos, Lifson and McCarthy, JJ., concur.