| Johnson v Berger |
| 2008 NY Slip Op 09357 [56 AD3d 725] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Philip Johnson et al., Respondents, v Adriana Berger et al.,Appellants. |
—[*1] Barry M. Sweeney, Cross River, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Queens County (Dorsa, J.), dated January 18, 2008, which deniedtheir motion for summary judgment dismissing the complaint on the ground that the plaintiffPhilip Johnson did not sustain a serious 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.
In support of their motion for summary judgment dismissing the complaint, the defendantssubmitted the deposition testimony of the injured plaintiff, Philip Johnson, and the affirmedmedical reports of their examining neurologist, orthopedist, and radiologist, which establishedprima facie that Johnson 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., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, the plaintiffsfailed to raise a triable issue of fact. The affidavit of Johnson's treating chiropractor was basedupon his examinations of Johnson 3½ to 4 years before the motion for summary judgmentwas made (see Batista v Olivo, 17 AD3d 494 [2005]; Frier v Teague, 288 AD2d177, 178 [2001]; Hand v Bonura, 283 AD2d 608, 609 [2001]; Mohamed v Dhanasar,273 AD2d 451 [2000]), and failed to address the finding of the defendants' examiningradiologist that Johnson's lumbar spine bulging discs were due to degenerative processes, and thefact that the plaintiff had admittedly [*2]sustained two or threeinjuries at work, including an injury to his back and an injury to his left knee (see Tudisco vJames, 28 AD3d 536, 537 [2006]; Giraldo v Mandanici, 24 AD3d 419, 420 [2005];Allyn v Hanley, 2 AD3d 470, 471 [2003]; Lorthe v Adeyeye, 306 AD2d 252, 253[2003]). Furthermore, the plaintiff failed to proffer competent medical evidence that he wasunable to perform substantially all of his daily activities for not less than 90 of the first 180 dayssubsequent to the subject accident (see Sainte-Aime v Ho, 274 AD2d 569, 570 [2000];DiNunzio v County of Suffolk, 256 AD2d 498, 499 [1998]). Rivera, J.P., Florio,Angiolillo, McCarthy and Chambers, JJ., concur.