| Munoz v Koyfman |
| 2007 NY Slip Op 08046 [44 AD3d 914] |
| October 23, 2007 |
| Appellate Division, Second Department |
| Rosemary Munoz et al., Appellants, v Pavel Koyfman etal., Respondents. |
—[*1] John P. Humphreys, Melville, N.Y. (Dominic P. Zafonte of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiffs, Rosemary Munozindividually, and Sebastian Munoz, an infant under the age of 14 by his mother and naturalguardian Rosemary Munoz, appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Rosengarten, J.), dated September 5, 2006, as granted thatbranch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted by the plaintiff Rosemary Munoz individually, on the ground that she did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the appeal by the plaintiff Sebastian Munoz, an infant under the age of 14 by hismother and natural guardian Rosemary Munoz, is dismissed, without costs or disbursements, ashe is not aggrieved by the portion of the order appealed from (see CPLR 5511); and it isfurther,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The Supreme Court correctly concluded that the defendants met their prima facie burden[*2]of establishing that the plaintiff Rosemary Munoz (hereinafterRosemary) 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., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; see also Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50[2005]).
In opposition, the affidavit of Rosemary's treating chiropractor failed to raise a triable issueof fact. His conclusions were speculative because he failed to account for the numerousaccidents, both before and after the subject one, in which Rosemary injured the same parts of herbody that she alleges were injured in this action (see Moore v Sarwar, 29 AD3d 752, 753 [2006]; Tudisco v James, 28 AD3d 536[2006]; Bennett v Genas, 27 AD3d601, 601-602 [2006]; Allyn vHanley, 2 AD3d 470, 471 [2003]). Moreover, Rosemary never explained the lengthygap in her treatment (see Berktas vMcMillian, 40 AD3d 563, 564 [2007]; Waring v Guirguis, 39 AD3d 741, 742 [2007]; Phillips v Zilinsky, 39 AD3d 728,729 [2007]; Allyn v Hanley, 2AD3d 470, 470-471 [2003]; seealso Pommells v Perez, 4 NY3d 566, 574 [2005]). Rosemary's reliance on her magneticresonance imaging reports was insufficient, on its own, to raise a triable issue of fact since theradiologist who prepared them did not establish what caused the pathology described therein (see Collins v Stone, 8 AD3d 321,322 [2004]). The statements contained in Rosemary's self-serving affidavit were insufficient toraise a triable issue of fact as well (seeGarcia v Solbes, 41 AD3d 426, 427 [2007]; Fisher v Williams, 289 AD2d 288,289 [2001]). Finally, Rosemary failed to proffer competent medical evidence that she sustained amedically determined injury of a nonpermanent nature which prevented her, for 90 of the 180days following the subject accident, from performing her usual and customary activities (seeSainte-Aime v Ho, 274 AD2d 569, 570 [2000]). Crane, J.P., Ritter, Fisher, Covello andDickerson, JJ., concur.