| Kin Chong Ku v Baldwin-Bell |
| 2009 NY Slip Op 03485 [61 AD3d 938] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Kin Chong Ku, Appellant, v Alice Anne Baldwin-Bell etal., Respondents. |
—[*1] Tromello, McDonnell & Kehoe, Melville, N.Y. (Stephen J. Donnelly of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Rosengarten, J.), entered May 12, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The Supreme Court correctly determined that the defendants met their prima facie burden ofshowing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result 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]). In opposition, theplaintiff failed to raise a triable issue of fact.
The plaintiff's submissions were insufficient to raise a triable issue of fact as to whether hesustained a serious injury under the significant limitation of use and/or the permanentconsequential limitation of use categories of Insurance Law § 5102 (d) since thosesubmissions were not based on a recent examination of the plaintiff (see Diaz v Lopresti, 57 AD3d 832[2008]; Soriano v Darrell, 55 AD3d900 [2008]; Diaz v Wiggins, 271 AD2d 639 [2000]; Kauderer v Penta, 261AD2d 365 [1999]; Marin v Kakivelis, 251 AD2d 462 [1998]). The plaintiff also failed tosubmit competent medical evidence that the injuries he allegedly sustained in the subjectaccident rendered him unable to perform substantially all of his daily activities for not less than90 days of the first 180 days subsequent to the subject accident (see [*2]Roman v Fast Lane Car Serv., Inc., 46 AD3d 535 [2007];Sainte-Aime v Ho, 274 AD2d 569 [2000]). The plaintiff admitted in his depositiontestimony that he missed only two days from work as a result of the subject accident. Spolzino,J.P., Santucci, Angiolillo and Leventhal, JJ., concur.