| Day v Santos |
| 2009 NY Slip Op 00055 [58 AD3d 447] |
| January 8, 2009 |
| Appellate Division, First Department |
| Darrell R. Day et al., Respondents, v Juan F. Santos et al.,Appellants. |
—[*1] Genser Dubow Genser & Cona, LLP, Melville (Jack H. Genser of counsel), forrespondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered March 26, 2008, whichdenied defendants' motion for summary judgment dismissing the complaint for lack of a seriousinjury within the meaning of Insurance Law § 5102 (d), unanimously reversed, on the law,without costs, and the motion granted. The Clerk is directed to enter judgment in favor ofdefendants dismissing the complaint.
Defendants made a prima facie showing of their entitlement to summary judgment bysubmitting the affirmed report of an expert who examined plaintiff Rebecca Mattos andconcluded, based upon objective tests conducted, that she had not suffered a permanentconsequential limitation or a significant limitation (see Onishi v N & B Taxi, Inc., 51 AD3d 594, 595 [2008]).Plaintiffs failed to raise a triable issue of fact with their expert's affirmed report findinglimitations in Mattos's range of motion, as the expert's examination was conducted more thantwo years after the accident (see Ali vKhan, 50 AD3d 454, 455 [2008]; Batts v Medical Express Ambulance Corp., 49 AD3d 294, 295[2008]). Additionally, Mattos offered no explanation for the discontinuation of her treatmentwithin six months after the accident (seePommells v Perez, 4 NY3d 566, 574 [2005]).
Defendants also established prima facie that Mattos did not suffer a 90/180-day injury, andMattos failed to raise a triable issue of fact, given her testimony that she went back to work [*2]immediately after the accident (see Gorden v Tibulcio, 50 AD3d 460, 463 [2008]; Guadalupe v Blondie Limo, Inc., 43AD3d 669, 670 [2007]). Concur—Mazzarelli, J.P., Saxe, Friedman, Acosta andDeGrasse, JJ.