| Strok v Chez |
| 2008 NY Slip Op 10154 [57 AD3d 887] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Aleksandr Strok, Respondent, v Diana Chez et al.,Appellants. |
—[*1] Aleksandr Vakarev (James M. Lane, New York, N.Y. of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated October 1,2007, as, upon reargument, denied their motion for summary judgment dismissing the complaint on theground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d), which had been determined in an order of the same court dated May 9, 2007.
Ordered that the order dated October 1, 2007 is reversed insofar as appealed from, on the law,with costs, and, upon reargument, the determination in the order dated May 9, 2007, granting themotion of the defendants for summary judgment dismissing the complaint on the ground that the plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d), is adhered to.
On their motion for summary judgment, the defendants established, prima facie, their entitlement tojudgment as a matter of law by showing that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (seeToure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955[1992]). In opposition, the plaintiff failed to raise a triable issue of fact. Neither the plaintiff nor hisexamining orthopedist adequately explained a lengthy gap in the plaintiff's treatment (see Pommells vPerez, 4 NY3d 566, 574 [2005]; Sibrizzi v Davis, 7 AD3d 691 [2004]; cf. Black vRobinson, 305 AD2d 438, 439-440 [2003]). Accordingly, upon reargument, the Supreme Courtshould have adhered to its original determination [*2]granting thedefendants' motion for summary judgment dismissing the complaint (cf. Wei-San Hsu v BriscoeProtective Sys., Inc., 43 AD3d 916, 917 [2007]; Waring v Guirguis, 39 AD3d 741, 742[2007]).
The defendants' remaining contention has been rendered academic in light of our determination.Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.