| Blasse v Laub |
| 2009 NY Slip Op 06111 [65 AD3d 509] |
| August 4, 2009 |
| Appellate Division, Second Department |
| Stephanie Blasse, Appellant, v Roslyn Laub,Respondent. |
—[*1] Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Mark R.Bernstein of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited byher brief, from so much of an order of the Supreme Court, Nassau County (Martin, J.), datedAugust 12, 2008, as denied her cross motion for summary judgment dismissing the complaint onthe ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's cross motion for summary judgment dismissing the complaint on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) isgranted.
Contrary to the Supreme Court's determination, the defendant met her prima facie burden byshowing 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's submissions were insufficient to raise a triable issue of fact as to whether she sustaineda serious injury under the significant limitation of use and/or the permanent consequentiallimitation of use categories of Insurance Law § 5102 (d), since those submissions were notbased on a recent examination (see KinChong Ku v [*2]Baldwin-Bell, 61 AD3d 938 [2009]; 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 she allegedly sustained in the subjectaccident rendered her unable to perform substantially all of her daily activities for not less than90 days of the first 180 days subsequent to the subject accident (see Kin Chong Ku v Baldwin-Bell, 61AD3d 938 [2009]; Roman v FastLane Car Serv., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569[2000]). In this respect, the plaintiff admitted in her deposition testimony that she missed, atmost, a single day from work as a result of the subject accident. Rivera, J.P., Dillon, Covello,Eng and Hall, JJ., concur.