| Yagi v Corbin |
| 2007 NY Slip Op 07749 [44 AD3d 440] |
| October 16, 2007 |
| Appellate Division, First Department |
| Shuji Yagi, Appellant, v Thor Corbin et al.,Respondents. |
—[*1] Fiedelman & McGaw, Jericho (Dawn C. DeSimone of counsel), for Thor Corbin and RafaelVasquez, respondents. Baker, McEvoy, Morrissey & Moskovits, P.C., New York City (Stacy R. Seldin of counsel),for Muhammed Rashid and Harry Kleidermacher, respondents.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered May 17, 2006,which granted defendants' motion and cross motion for summary judgment dismissing thecomplaint, unanimously affirmed, without costs.
The affirmed medical report of defendants' orthopedist, detailing the objective testsperformed, finding that plaintiff had full range of motion in his cervical and lumbar spine, andconcluding that he had recovered from the sprain- and strain-type injuries to his cervical, thoracicand lumbar spine suffered as a result of the accident, satisfied their burden of establishing primafacie that plaintiff did not suffer a serious injury (see Gaddy v Eyler, 79 NY2d 955, 956[1992]). The burden then shifted to plaintiff to raise a triable issue of fact that a serious injurywas sustained within the meaning of the Insurance Law (see Thompson v Abbasi, 15 AD3d 95, 97 [2005]).
Plaintiff failed to meet that burden because his expert's report, dated nearly three years afterhis last treatment of plaintiff, does not satisfactorily explain why plaintiff terminated treatment.Therefore, notwithstanding the objective medical proof offered by plaintiff, "when additionalcontributory factors interrupt the chain of causation . . .—such as a gap intreatment . . . or a preexisting condition—summary dismissal of thecomplaint may be appropriate" (seePommells v Perez, 4 NY3d 566, 572 [2005]). Not only was there an unexplained gap intreatment of nearly three years, but plaintiff also had a preexisting shoulder injury, which was notsufficiently addressed.[*2]
We have considered plaintiff's remaining contentions andfind them without merit. Concur—Lippman, P.J., Andrias, Marlow, Buckley andCatterson, JJ.