| Dantini v Cuffie |
| 2009 NY Slip Op 01079 [59 AD3d 490] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Mary Dantini, Appellant, v Myles Cuffie et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Weber, J.), dated March 14, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
Once the defendants made their prima facie showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955 [1992]), the burden shifted to the plaintiff to produce sufficient evidence toraise a triable issue of fact (see CPLR 3212). The plaintiff failed to meet this burden. Theplaintiff failed to adequately explain the nearly three-year gap in medical treatments (see Pommells v Perez, 4 NY3d566, 574 [2005]; Cervino vGladysz-Steliga, 36 AD3d 744 [2007]). Moreover, the plaintiff's subjective complaintsof pain were insufficient to establish the existence of a serious injury (see Rudas v Petschauer, 10 AD3d357 [2004]; Coloquhoun v 5 Towns Ambulette, 280 AD2d 512 [2001]; LeBrunv Joyner, 195 AD2d 502 [1993]), particularly where, as here, there were no objectivemedical findings to substantiate those complaints (see Carroll v Jennings, 264 AD2d 494[1999]). Furthermore, the plaintiff failed to proffer competent medical evidence that she wasunable to perform substantially all of her daily activities for not less than 90 of the first 180 dayssubsequent to the subject accident (see Sainte-Aime v Ho, 274 AD2d 569 [2000];DiNunzio v [*2]County of Suffolk, 256 AD2d 498[1998]). Mastro, J.P., Fisher, Florio, Carni and Eng, JJ., concur.