| Santos v Taveras |
| 2008 NY Slip Op 07963 [55 AD3d 405] |
| October 21, 2008 |
| Appellate Division, First Department |
| Adelaida Santos, Appellant, v Tomas Taveras,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered May 21, 2007, whichgranted defendant's motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
The motion court properly granted defendant's motion for leave to move for summaryjudgment more than 120 days after the filing of the note of issue (CPLR 3212 [a]; see Pippo vCity of New York, 43 AD3d 303, 303-304 [2007]).
Defendant established prima facie that plaintiff did not sustain a "serious injury" within themeaning of Insurance Law § 5102 (d), by submitting a physician's affirmation reportingfindings of a normal range of motion of the cervical spine and a mild "self-imposed" limitation ofrange of motion of the lumbar spine (see Style v Joseph, 32 AD3d 212, 214 n [2006]). Inopposition, plaintiff failed to raise a triable factual issue. She presented no objective medicalevidence of any injury to her lumbar spine. The only MRI study thereof was performed in July2005, nearly one year after the accident, and the first documentation of any limitationcorresponding to the findings of that study was made in December 2006, two years and fourmonths after the accident and thus too remote to raise an inference that the limitation was causedby the accident (see Lopez v Simpson, 39 AD3d 420, 421 [2007]). Moreover, plaintifffailed to explain adequately the cessation of her treatment (see Pommells v Perez, 4NY3d 566, 574-575 [2005]). Plaintiff's small, well-healed scars do not constitute a "significantdisfigurement" within the meaning of the statute (see Hutchinson v Beth Cab Corp., 207AD2d 283, 283-284 [1994]).[*2]
Plaintiff also failed to submit competent medicalevidence substantiating her 90/180-day claim. Concur—Mazzarelli, J.P., Catterson,McGuire, Acosta and Renwick, JJ.