| Diaz v Lopresti |
| 2008 NY Slip Op 10119 [57 AD3d 832] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Ashley Diaz et al., Respondents, v Robert Lopresti,Appellant. |
—[*1] Riconda & Garnett, LLP, Valley Stream, N.Y. (Louis A. Badolato of counsel), forrespondents.
In an action, inter alia, to recover damages for personal injuries, etc., the defendant appeals froman order of the Supreme Court, Nassau County (McCormack, J.), entered April 2, 2008, whichdenied his motion for summary judgment dismissing the first, second, and sixth causes of action assertedby the plaintiff Ashley Diaz on the ground that she did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d), dismissing the claim of the plaintiff Ashley Diaz to recover damagesfor economic loss in excess of basic economic loss within the meaning of Insurance Law § 5104,and dismissing the third cause of action asserted by the plaintiff Debbie Diaz for loss of services ofAshley Diaz.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summaryjudgment dismissing the first, second, and sixth causes of action asserted by the plaintiff Ashley Diaz, onthe ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), dismissing the claim of the plaintiff Ashley Diaz to recover damages for economic loss in excess ofbasic economic loss within the meaning of Insurance Law § 5104, and dismissing the third causeof action asserted by the plaintiff Debbie Diaz for loss of services of Ashley Diaz, is granted.
The Supreme Court correctly determined that the defendant established, prima facie, his entitlementto judgment as a matter of law dismissing the first, second, and sixth causes of action asserted by theplaintiff Ashley Diaz (hereinafter Ashley), and the third cause of action asserted by [*2]the plaintiff Debbie Diaz for loss of Ashley's services by showing thatAshley did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as aresult 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]). However, in opposition, the plaintiffs failedto raise a triable issue of fact as to whether Ashley sustained a serious injury as a result of the subjectaccident. The medical reports of Ashley's treating orthopedist failed to raise a triable issue of fact as towhether she sustained a serious injury under the permanent consequential limitation of use and/or thesignificant limitation of use categories of Insurance Law § 5102 (d) since they were not based ona recent examination of her (see Landicho vRincon, 53 AD3d 568, 569 [2008]; Cornelius v Cintas Corp., 50 AD3d 1085 [2008]; Young Hwan Park v Orellana, 49 AD3d721 [2008]; Amato v Fast Repair Inc.,42 AD3d 477 [2007]).
Moreover, the plaintiffs failed to submit competent medical evidence that the injuries allegedlysustained by Ashley as a result of the subject accident rendered her unable to perform substantially allof her daily activities for not less than 90 days of the first 180 days subsequent to the subject accident(see Rabolt v Park, 50 AD3d 995[2008]; Roman v Fast Lane Car Serv., Inc.,46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).
Ashley failed to establish economic loss in excess of basic economic loss (see Watford v Boolukos, 5 AD3d 475,476 [2004]). Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ., concur. [See 2008NY Slip Op 30988(U).]