| Shaji v City of New Rochelle |
| 2009 NY Slip Op 07395 [66 AD3d 760] |
| October 13, 2009 |
| Appellate Division, Second Department |
| Jalaja K. Shaji, Respondent, v City of New Rochelle et al.,Appellants. |
—[*1] Richard L. Giampa, Esq., P.C., Bronx, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Westchester County (Liebowitz, J.), entered February 2, 2009, which deniedtheir motion for summary judgment dismissing the complaint on the ground, inter alia, that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, that branch of the defendants'motion which was for summary judgment dismissing the complaint on the ground that theplaintiff did not sustain a serious injury is granted, and the motion is otherwise denied asacademic.
The Supreme Court properly determined that the defendants, in support of their motion, mettheir prima facie burden of showing that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure vAvis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957[1992]). The Supreme Court erred, however, in finding that the plaintiff's submissions weresufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injurywithin the meaning of the no-fault statute.
In opposition to the defendants' motion on the issue of serious injury, the plaintiff improperlyrelied on, inter alia, the unaffirmed medical reports from "Physical Performance Testing of NewYork" (see Grasso v Angerami, 79 NY2d 813 [1991]; Maffei v Santiago, 63 AD3d 1011[2009]; Niles v Lam Pakie Ho, 61AD3d 657 [2009]; Uribe-Zapata vCapallan, 54 AD3d 936 [2008]; Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747[2007]; Nociforo v Penna, 42 AD3d514 [2007]; Pagano v Kingsbury, 182 AD2d 268 [1992]). The affirmed medicalreports of Dr. Richard Harvey from 2008 failed to raise a triable issue of fact because while Dr.Harvey noted limitations in the plaintiff's cervical and lumbar spine ranges of motion, he failedto set forth any conclusion that the limitations noted therein were caused by the subject accident(see Morris v Edmond, 48 AD3d432 [2008]; Itskovich vLichenstadter, 2 AD3d 406 [2003]). Furthermore, Dr. Harvey failed to account fornotations in the plaintiff's medical records indicating that the plaintiff had full range of motion inher neck and back within three months after the subject accident (see Maffei v Santiago, 63 AD3d1011 [2009]; Kaplan vVanderhans, 26 AD3d 468 [2006]; Brown v Tairi Hacking Corp., 23 [*2]AD3d 325 [2005]). Moreover, the plaintiff failed to explain thecessation of her treatment after March 2006 (see Pommells v Perez, 4 NY3d 566 [2005]; Ponciano v Schaefer, 59 AD3d605 [2009]; Garcia v Lopez, 59AD3d 593 [2009]; Pompey vCarney, 59 AD3d 416 [2009]; Sapienza v Ruggiero, 57 AD3d 643 [2008]).
The plaintiff also failed to provide any competent medical evidence that the injuriesallegedly sustained by her in the subject accident rendered her unable to perform substantially allof her usual and customary daily activities for not less than 90 days of the first 180 dayssubsequent to the subject accident (seeWashington v Mendoza, 57 AD3d 972 [2008]; Rabolt v Park, 50 AD3d 995 [2008]; Roman v Fast Lane Car Serv., Inc., 46AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).
The defendants' remaining contention has been rendered academic in light of ourdetermination. Prudenti, P.J., Miller, Chambers and Roman, JJ., concur.