| Taylor v Flaherty |
| 2009 NY Slip Op 06830 [65 AD3d 1328] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Marjorie Taylor, Respondent, v Joan F. Flaherty et al.,Appellants. |
—[*1] Rubenstein & Rynecki, Brooklyn, N.Y. (Kliopatra Vrontos of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Knipel, J.), dated December 3, 2008, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The defendants met their prima facie burden of 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, 956-957 [1992]). In opposition, the plaintiff failed to raise a triable issue offact.
The affirmations and reports of Dr. David Adin and Dr. Charles Kaplan failed to raise atriable issue of fact. None of these submissions contained either quantified range-of-motionfindings or a qualitative assessment of the plaintiff's cervical or lumbar regions (see Shtesl vKokoros, 56 AD3d 544 [2008]; see also Toure v Avis Rent A Car Sys., 98 NY2d at350). The medical report dated June 2, 2007, was not affirmed by someone with personalknowledge of the facts. The only competent medical report submitted by the plaintiff thatrevealed significant limitations in the plaintiff's cervical and lumbar regions based on objectiverange of motion testing was the report of Dr. Christopher Kyriakides dated May 14, 2008.
The plaintiff's submissions were insufficient to raise a triable issue of fact as to whether shesustained a serious injury under the permanent consequential limitation and/or significantlimitation of use categories of Insurance Law § 5102 (d) because she failed to proffercompetent medical evidence that revealed the existence of significant limitations in either hercervical or lumbar regions that were contemporaneous with the subject accident (see Fung vUddin, 60 AD3d 992 [2009]; Gould v Ombrellino, 57 AD3d 608 [2008];Kuchero v Tabachnikov, 54 AD3d 729 [2008]; Ferraro v Ridge Car Serv., 49AD3d 498 [2008]).[*2]
The plaintiff further failed to set forth any competentmedical evidence to establish that she sustained a medically determined injury of anonpermanent nature which prevented her from performing her usual and customary activitiesfor 90 of the 180 days following the subject accident (see Kuchero v Tabachnikov, 54AD3d 729 [2008]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). Skelos, J.P., Santucci,Covello, Chambers and Austin, JJ., concur.