| Danvers v New York City Tr. Auth. |
| 2008 NY Slip Op 09637 [57 AD3d 252] |
| December 9, 2008 |
| Appellate Division, First Department |
| Isabel Danvers, Respondent-Appellant, v New York CityTransit Authority et al., Appellants-Respondents. |
—[*1] Rubert & Gross, P.C., New York (Soledad Rubert of counsel), forrespondent-appellant.
Judgment, Supreme Court, Bronx County (Alan J. Saks, J., and a jury), entered June 14,2007, awarding damages for personal injuries and bringing up for review, inter alia, the denial ofdefendants' motion at the close of evidence for judgment as a matter of law, unanimouslyreversed, on the law, without costs, defendants' motion granted, and the complaint dismissed.The Clerk is directed to enter judgment accordingly.
Plaintiff failed to make out a prima facie case of serious injury under either a quantitative orqualitative analysis (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]).Concerning her lumbar spine, while plaintiff submitted evidence of herniated and bulging discsand a history of pain, an objective assessment of her range-of-motion limitations was not madeuntil more than five years after the accident, too remote to permit an inference that her limitationswere caused by the accident (see Medinav Medina, 49 AD3d 335 [2008]). Concerning her ankle, the arthroscopic surgeryperformed eight months after the accident to repair a partially torn ligament and a history of paindo not by themselves establish a serious injury (see O'Bradovich v Mrijaj, 35 AD3d 274 [2006]), and, once again,the only objective evidence of range-of-motion limitations was produced by tests too remote intime from the accident to permit an inference that plaintiff's present limitations were caused bythe accident. In any event, plaintiff's evidence reveals an unexplained gap of two years and ninemonths in her primary physician's treatment, negating any showing of serious injury (see Otero v 971 Only U, Inc., 36 AD3d430 [2007]). Concur—Andrias, J.P., Nardelli, McGuire, Moskowitz and Renwick, JJ.