| Spence v Mikelberg |
| 2009 NY Slip Op 07398 [66 AD3d 765] |
| October 13, 2009 |
| Appellate Division, Second Department |
| Daphne Spence, Appellant, v Rae Mikelberg,Respondent. |
—[*1] Morris, Duffy, Alonso & Faley, New York, N.Y. (Anna J. Ervolina of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Satterfield, J.), dated November 17, 2008, which grantedthe defendant's 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).
Ordered that the order is affirmed, with costs.
The defendant met her prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis RentA Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Inopposition, the plaintiff failed to raise a triable issue of fact. The only medical submission by theplaintiff in opposition to the defendant's motion was the affirmation of Dr. Dov Berkowitz, theplaintiff's treating orthopedist. However, Dr. Berkowitz's affirmation failed to raise a triableissue of fact. While Dr. Berkowitz noted limitations during testing of the plaintiff, he failed to setforth any objective testing he did in order to arrive at those conclusions (see Sapienza v Ruggiero, 57 AD3d643 [2008]; Budhram vOgunmoyin, 53 AD3d 640, 641 [2008]; Piperis v Wan, 49 AD3d 840, 841 [2008]; Murray v Hartford, 23 AD3d 629[2005]; Nelson v Amicizia, 21AD3d 1015, 1016 [2005]).
In addition, the plaintiff's affidavit was insufficient to raise a triable issue of fact (see Maffei v Santiago, 63 AD3d1011 [2009]; Thomas v Weeks,61 AD3d 961 [2009]; Luizzi-Schwenk v Singh, 58 AD3d 811 [2009]; Gochnour v Quaremba, 58 AD3d680 [2009]). The plaintiff failed to submit competent medical evidence demonstrating thatthe injuries she allegedly sustained in the subject accident rendered her unable to performsubstantially all of her usual and customary daily activities for not less than 90 days of the first180 days subsequent to the subject accident (see Sutton v Yener, 65 AD3d 625 [2009]; Roman v Fast Lane Car Serv., Inc., 46AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). Mastro, J.P., Dillon,Dickerson, Belen and Lott, JJ., concur. [See 2008 NY Slip Op 33332(U).]