| Johnson v Marriott Mgt. Servs. Corp. |
| 2007 NY Slip Op 07759 [44 AD3d 450] |
| October 16, 2007 |
| Appellate Division, First Department |
| Cecelia M. Johnson, Appellant, v Marriott ManagementServices Corp. et al., Respondents, et al., Defendants. |
—[*1] Wade, Clark Mulcahy, New York City (Paul F. Clark of counsel), for respondents.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered June 5, 2006, which, to theextent appealed from as limited by the briefs, granted defendants' motion for summary judgmentdismissing the complaint on the ground that plaintiff did not suffer a serious injury underInsurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants met their initial burden by making a prima facie showing that plaintiff did notsustain a "significant limitation of use of a body function or system" (Insurance Law §5102 [d]). Defendants submitted, inter alia, an affidavit of a board-certified neurologist, whoreviewed plaintiff's medical records, examined her and performed range of motion tests beforeconcluding that there was no neurological disorder consequent to the instant motor vehicleaccident. The affidavit of plaintiff's chiropractor failed to demonstrate that the cervical discherniations or any other injury plaintiff suffered were causally related to the accident and werenot, instead, related to a prior injury or degenerative condition (see Shinn v Catanzaro, 1 AD3d195, 198 [2003]). Plaintiff also failed to explain the two-to-three-year gap in her treatment(Pommells v Perez, 4 NY3d566, 574 [2005]).
Defendants similarly made a prima facie showing that plaintiff did not sustain anonpermanent injury which prevented her from performing substantially her usual and customarydaily activities for not less than 90 days during the 180 days immediately following her accident(Insurance Law § 5102 [d]). Defendants' submissions included the opinion of theneurologist, plaintiff's medical records and a copy of plaintiff's bill of particulars in which shestated that she was only confined to bed for two weeks following the accident (see Copeland v Kasalica, 6 AD3d253 [2004]). In opposition, plaintiff failed to provide objective, admissible evidence of thepersistence of her injury during the statutorily relevant period, and her subjective statements areinsufficient to create a triable issue regarding whether she sustained a serious injury under the90/180-day category (see Nelson v Distant, 308 AD2d 338, 339-340 [2003]).[*2]
We have considered plaintiff's remaining contentions andfind them unavailing. Concur—Lippman, P.J., Andrias, Marlow, Buckley and Catterson,JJ.