| Chong Sim Kim v Amaya |
| 2008 NY Slip Op 04293 [51 AD3d 487] |
| May 8, 2008 |
| Appellate Division, First Department |
| Chong Sim Kim et al., Appellants, v Carlos Amaya,Defendant, and Chrysler Financial, Respondent. |
—[*1] Abrams, Gorelick, Friedman & Jacobson, P.C., New York (Dennis J. Monaco of counsel),for respondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 29, 2007,which, insofar as appealed from as limited by the briefs, granted the motion of defendantChrysler Financial for summary judgment dismissing the complaint on the ground that plaintiffChong Sim Kim did not sustain a serious injury as defined by Insurance Law § 5102 (d),unanimously affirmed, without costs.
Defendant established a prima facie entitlement to summary judgment by submittingaffirmed reports of a neurologist and an orthopedist, who reviewed plaintiff's prior medicalrecords, examined her and performed objective tests before concluding that plaintiff wasneurologically intact, had no meaningful limitation of use of her cervical or lumbar spine, andthat the findings on the MRI films and X rays were degenerative in nature and not the result ofthe subject car accident (see Gaddy v Eyler, 79 NY2d 955 [1992]).
Plaintiff's opposition failed to raise a triable issue of fact as to whether a serious injury wassustained within the meaning of the Insurance Law. The affirmed report from the physician whoexamined plaintiff more than three years after the accident, fails to provide a causal connectionbetween the alleged injuries and the accident (see Montgomery v Pena, 19 AD3d 288, 289-290 [2005]), and doesnot account for the degenerative changes that the MRI films revealed (see Mullings v Huntwork, 26 AD3d214, 216 [2006]). Plaintiff also failed to provide a reasonable explanation as to why sheterminated treatment at the end of 2002 (see Pommells v Perez, 4 NY3d 566, 574 [2005]). Furthermore,plaintiff did not raise a triable issue of fact in the form of competent objective evidencesubstantiating her 90/180-day claim (seeJohnson v Marriott Mgt. Servs. Corp., 44 AD3d 450 [2007]).
The cause of action for intentional infliction of emotional distress was properly dismissed[*2]because the allegations upon which the claim is based are not"sufficiently outrageous" to support the cause of action (see Howell v New York PostCo., 81 NY2d 115, 122 [1993]). Concur—Mazzarelli, J.P., Sweeny, Moskowitz andRenwick, JJ.