| Krauer v Hines |
| 2008 NY Slip Op 08299 [55 AD3d 881] |
| October 28, 2008 |
| Appellate Division, Second Department |
| Fred Krauer, Appellant, v John Hines, Defendant andThird-Party Plaintiff-Respondent, and Michael Cardineau et al., Respondents. Matthew Kay et al.,Third-Party Defendants-Respondents. |
—[*1] Stewart H. Friedman (John T. Ryan, Riverhead, N.Y. [Robert F. Horvat], of counsel), fordefendant third-party plaintiff-respondent. Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Susan M. Ulrich of counsel), fordefendants-respondents. Scalzi & Nofi, PLLC, Melville, N.Y. (Vincent J. Nofi of counsel), for third-partydefendant-respondent Ronald Pina (joining in the briefs filed by the defendant third-partyplaintiff-respondent and defendants-respondents).
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Queens County (Satterfield, J.), entered September 21, 2007, which granted theseparate motions of the defendant third-party plaintiff, John Hines, and the defendants, MichaelCardineau and Richard J. Cardineau, for summary judgment dismissing the complaint insofar asasserted against each of them on the ground that he did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d), and granted the motion of the third-party defendants Matthew Kayand Susan Kay, and the separate motion of the third-party defendant Ronald Pina, for summaryjudgment dismissing the complaint on the ground that he did not sustain a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with one bill of costs payable to the defendant [*2]third-party plaintiff-respondent and the defendants-respondentsappearing separately and filing separate briefs.
On their separate motions for summary judgment, the defendant third-party plaintiff, John Hines,the defendants, Michael Cardineau and Richard J. Cardineau, the third-party defendants Matthew Kayand Susan Kay, and the third-party defendant Ronald Pina, met their prima facie burdens of showingthat the plaintiff did not sustain a serious injury 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, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise atriable issue of fact. Since neither the affidavit of the plaintiff's treating chiropractor nor the affirmation ofhis treating neurologist were based on a recent examination, they were insufficient to raise a triable issueof fact as to whether he sustained a serious injury based on either a permanent consequential limitationof use of a body organ or member, or a significant limitation of use of a body function or system (see Deutsch v Tenempaguay, 48 AD3d614, 615 [2008]; Ali v Mirshah, 41AD3d 748, 749 [2007]; Mejia vDeRose, 35 AD3d 407 [2006]; Elgendy v Nieradko, 307 AD2d 251 [2003]). Inaddition, the plaintiff failed to provide any competent medical evidence establishing that he sustained amedically determined injury of a nonpermanent nature which prevented him from performing his usualand customary activities for 90 of the 180 days following the subject accident (see Kuchero v Tabachnikov, 54 AD3d729 [2008]; Sainte-Aime v Ho, 274 AD2d 569, 570 [2000]). Fisher, J.P., Lifson,Covello and Balkin, JJ., concur.