| Richards v Tyson |
| 2009 NY Slip Op 06011 [64 AD3d 760] |
| July 28, 2009 |
| Appellate Division, Second Department |
| Walley Richards et al., Respondents, v Leroy Tyson,Appellant. |
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In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Vaughan, J.), dated March 5, 2008, which denied his motionfor summary judgment dismissing the complaint on the ground that none of the plaintiffssustained a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint on the ground that none of the plaintiffs sustained aserious injury within the meaning of Insurance Law § 5102 (d) is granted.
The plaintiffs commenced this action to recover damages for injuries they each allegedlysustained in a motor vehicle accident. The defendant moved for summary judgment dismissingthe complaint on the ground that none of the plaintiffs sustained a serious injury within themeaning of Insurance Law § 5102 (d).
The defendant established, prima facie, through the affirmed reports of his expert neurologistand expert orthopedist and the plaintiffs' deposition testimony, that none of the plaintiffssustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddyv Eyler, 79 NY2d 955 [1992]; Sanchez v Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d664 [2008]; Kearse v New YorkCity Tr. Auth., 16 AD3d 45, 47-50 [2005]). The plaintiffs' respective depositiontestimony that they missed little, if any, time from school or work as a result of the subject motorvehicle accident, established that their alleged injuries did not prevent them from performingsubstantially all of the material acts constituting their customary daily activities during at least90 of the first 180 days following the accident (see Sanchez v Williamsburg Volunteer ofHatzolah, Inc., 48 AD3d at 664, 665).
In opposition, none of the plaintiffs raised a triable issue of fact as to whether they sustaineda serious injury (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Lea v Cucuzza, 43 AD3d 882[2007]). The affirmed medical reports prepared by Dr. Roger Brick were not admissible tooppose the defendant's motion, as he was no longer licensed to practice medicine in the state atthe time the reports were written (see CPLR 2106; Fung v Uddin, 60 AD3d 992 [2009]; McDermott v New York Hosp.-CornellMed. Ctr., 42 AD3d 346 [2007]). Moreover, while the affirmed medical reports of Dr.Douglas Schwartz, which were also submitted in opposition to the motion, found significant[*2]limitations in each of the plaintiffs' respective ranges ofmotion, such findings were not contemporaneous with the subject accident (see Kurin v Zyuz, 54 AD3d 902,903 [2008]; Morris v Edmond, 48AD3d 432, 433 [2008]; D'Onofriov Floton, Inc., 45 AD3d 525 [2007]).
Accordingly, the Supreme Court should have granted the defendant's motion for summaryjudgment dismissing the complaint. Mastro, J.P., Eng, Belen and Hall, JJ., concur.