| Ferraro v Ridge Car Serv. |
| 2008 NY Slip Op 01914 [49 AD3d 498] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Tatyana Ferraro, Respondent, v Ridge Car Service et al.,Appellants. |
—[*1] Andrew Hirschhorn, Rosedale, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Solomon, J.), dated June 6, 2007, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The defendants met their prima facie burden of establishing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triableissue of fact. On appeal, the plaintiff claims that her submissions raised a triable issue of fact asto whether she sustained a permanent consequential limitation of use of a body organ or memberand/or a significant limitation of use of a body function or system, as set forth in Insurance Law§ 5102 (d). To establish that she sustained an injury that falls within either of thesecategories of serious injury, the plaintiff was required to show the duration of the alleged injuryand the extent or degree of the limitations associated therewith (see Lee v Fischer, 244AD2d 389 [1997]; Beckett v Conte, 176 AD2d 774 [1991]). While the plaintiffsubmitted evidence of a recent examination in which significant limitations in cervical andlumbar ranges of motion were noted by [*2]her treatingosteopath, she failed to proffer competent medical evidence of any range-of-motion limitations inher spine that were contemporaneous with the subject accident (see D'Onofrio v Floton, Inc., 45 AD3d525 [2007]; Morales v Daves,43 AD3d 1118 [2007]; Rodriguez vCesar, 40 AD3d 731 [2007]; Borgella v D & L Taxi Corp., 38 AD3d 701 [2007]). Thus, in theabsence of contemporaneous findings of range-of-motion limitations in her spine, the plaintiffwas unable to establish the duration of the injury.
Moreover, neither the plaintiff nor her treating osteopath adequately explained the significantgap in treatment between May 2005, when, based on the plaintiff's assertions, she was last treatedby a chiropractor and March 2007, when she was examined by her treating osteopath in directresponse to the defendants' motion for summary judgment (see Siegel v Sumaliyev, 46 AD3d 666 [2007]; Yudkovich v Boguslavsky, 11 AD3d607 [2004]). Prudenti, P.J., Skelos, Miller, Covello and McCarthy, JJ., concur.