| Christian v Waite |
| 2009 NY Slip Op 03381 [61 AD3d 581] |
| April 28, 2009 |
| Appellate Division, First Department |
| Mary Christian, Appellant, v George Waite et al.,Respondents. |
—[*1] Law Office of Thomas K. Moore, White Plains (Nick Migliaccio of counsel), for GeorgeWaite, respondent. Barrett Lazar, LLC, Forest Hills (Marc B. Schuley of counsel), for Janine Garfield,respondent.
Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered February 14, 2008,which granted defendants' motions for summary judgment dismissing the complaint,unanimously affirmed, without costs.
Defendants established a prima facie entitlement to summary judgment by submittingevidence demonstrating that plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of an automobile accident. Specifically, defendantssubmitted the affirmed report of a neurologist who, upon examining plaintiff and performingobjective tests with range of motion calculations, concluded that she had a normal range ofmotion of the lumbar and cervical spine, despite positive MRI findings (see Thompson vAbbasi, 15 AD3d 95, 96 [2005]). They also submitted plaintiff's bill of particulars anddeposition testimony, which reveal that plaintiff was confined to bed and home for only a fewweeks after the accident.
Plaintiff failed to raise a triable issue of fact as to whether a serious injury was sustained.Despite the positive MRI report, there were no admissible objective findings immediatelyfollowing the accident to demonstrate any initial range of motion restrictions on plaintiff'scervical and lumbar spine, or any detailed explanation for their omission (Thompson, 15AD3d at 98). The quantitative range of motion assessment plaintiff did submit was made sometwo years after the accident by a physician who examined her for the first time on that occasion,apparently for purposes of litigation (see Atkinson v Oliver, 36 AD3d 552, 552-553[2007]). We also note that there was a significant gap in treatment.
Plaintiff also failed to raise a triable issue of fact as to whether she was incapacitated fromperforming substantially all of her usual and customary activities for at least 90 of the first [*2]180 days after the accident. The subjective claims of pain and"unsubstantiated claim of inability to perform [her] customary daily activities are insufficient toraise a triable issue of fact" (Thompson, 15 AD3d at 101). Concur—Saxe, J.P.,Friedman, Moskowitz, Freedman and Richter, JJ.