| Ning Wang v Harget Cab Corp. |
| 2008 NY Slip Op 00465 [47 AD3d 777] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Ning Wang, Respondent, v Harget Cab Corp. et al.,Appellants, et al., Defendant. |
—[*1] Dansker & Aspromonte, New York, N.Y. (Vera Tsai of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Harget Cab Corp. andSS & R Management Company, Inc., appeal, as limited by their brief, from so much of an orderof the Supreme Court, Kings County (Schmidt, J.), dated March 13, 2007, as denied their motionfor summary judgment dismissing the complaint insofar as asserted against them on the groundthat the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theappellants' motion for summary judgment dismissing the complaint is granted.
The defendants Harget Cab Corp. and SS & R Management Company, Inc. (hereinafter theappellants), made out their prima facie case showing that the plaintiff did not sustain a seriousinjury 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, 79NY2d 955, 956-957 [1992]). Contrary to the conclusion of the Supreme Court, the plaintiff'sopposition papers were insufficient to raise a triable issue of fact.
The plaintiff's treating physiatrist's affirmations, while setting forth limitations as to theplaintiff's ranges of motion as to various parts of his body, were insufficient in that they failed toaccount for the 10-month gap between the physiatrist's last treatment of the plaintiff and theplaintiff's examination on January 9, 2007. There was no evidence that the plaintiff underwentany medical treatment in this time period and no explanation as to why none was appropriate (see [*2]Phillips v Zilinsky, 39 AD3d 728 [2007]; Caracci v Miller, 34 AD3d 515[2006]; cf. Seecoomar v Ly, 43AD3d 900 [2007]; Black v Robinson, 305 AD2d 438 [2003]; see also Pommells v Perez, 4 NY3d566 [2005]). Additionally, while there may have been some proof that the plaintiff wassuffering from herniated or bulging discs, it was insufficient as there was no objective evidenceas to the extent of any alleged physical limitations resulting from the disc injury and its duration(see Patterson v NY Alarm ResponseCorp., 45 AD3d 656 [2007]; Mejia v DeRose, 35 AD3d 407 [2006]; Kearse v New York City Tr. Auth., 16AD3d 45 [2005]).
The plaintiff's affidavit, recalling the events of the accident and the plaintiff's prior treatment,was insufficient to raise a triable issue of fact (see Fisher v Williams, 289 AD2d 288[2001]). The plaintiff's hospital records also were without any probative value in opposing themotion of the appellants since they were uncertified (see Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007];Mejia v DeRose, 35 AD3d 407[2006]).
Finally, the plaintiff failed to proffer competent medical evidence that he sustained amedically-determined injury of a nonpermanent nature which prevented him, for 90 of the 180days following the subject accident, from performing his usual and customary activities (seeSainte-Aime v Ho, 274 AD2d 569 [2000]). Rivera, J.P., Florio, Carni and Balkin, JJ.,concur.