| Ali v Khan |
| 2008 NY Slip Op 03327 [50 AD3d 454] |
| April 15, 2008 |
| Appellate Division, First Department |
| Kiran Ali et al., Respondents, v Zahid R. Khan et al.,Appellants. (And a Third-Party Action.) |
—[*1] Spiegel & Barbato, LLP, Bronx (Brian C. Mardon of counsel), for respondents.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered on or aboutSeptember 28, 2007, which denied defendants' motion for summary judgment dismissing somuch of the complaint as brought by plaintiffs Ali and Akhtar for lack of the requisite seriousinjury, unanimously reversed, on the law, without costs, and the motion granted and thecomplaint dismissed as to those plaintiffs. The Clerk is directed to enter judgment accordingly.
Defendants met their burden of demonstrating that Ali and Akhtar did not sustain seriousinjuries as defined in Insurance Law § 5102 (d), and these plaintiffs failed to produceprima facie evidence in admissible form to support such claim (see Licari v Elliott, 57NY2d 230 [1982]). Neither of these plaintiffs presented competent medical evidencecontemporaneous to the time of the accident showing the condition of her lumbar and cervicalspine (see Petinrin v Levering, 17AD3d 173 [2005]). Where the only objective evidence of limitation of motion is containedin a report of an orthopedist who examined the plaintiff several years after the accident, thefinding is "too remote to raise an issue of fact as to whether the limitations were caused by theaccident" (Lopez v Simpson, 39AD3d 420, 421 [2007]). Nor was there any contemporaneous "admissible evidence that[either] plaintiff was ever diagnosed by her treating physician with a fracture that resulted fromthis accident" (O'Bradovich vMrijaj, 35 AD3d 274, 275 [2006]). Inasmuch as the claimed spinal injuries werenonpermanent in nature, plaintiffs failed to proffer any objective evidence of the persistence ofthese injuries during the statutory 90/180-day period that caused [*2]them to curtail performance of their usual and customary activities(see Norona v Manhattan & BronxSurface Tr. Operating Auth., 40 AD3d 480 [2007]). Concur—Mazzarelli, J.P.,Andrias, Friedman and Sweeny, JJ.