| Menaker v White Express Cab Corp. |
| 2009 NY Slip Op 09626 [68 AD3d 1069] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Marybeth Menaker, Appellant, v White Express Cab Corp.et al., Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondents White Express Cab Corp. and Shuminov Elkhan.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Starkey, J.), dated July 1, 2008, which granted themotion of the defendants White Express Cab Corp. and Shuminov Elkhan, and the separatemotion of the defendant Francisco Lopez, for summary judgment dismissing the complaintinsofar as asserted against them on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The respective defendants, in support of their motions for summary judgment, relied on thesame submissions. Those submissions were sufficient to meet their prima facie burdens ofshowing 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,the plaintiff failed to raise a triable issue of fact.
While the plaintiff relied on the affirmation of her treating neurologist, in which he revealedthat the plaintiff had significant limitations in her cervical and lumbar spine two yearspost-accident, as well as more recently, neither he nor the plaintiff proffered competent medicalevidence of significant limitations in either her cervical or lumbar regions that werecontemporaneous with the subject accident (see Taylor v Flaherty, 65 AD3d 1328[2009]; Fung v Uddin, 60 AD3d 992 [2009]; Gould v Ombrellino, 57 AD3d 608[2008]; Kuchero v Tabachnikov, 54 AD3d 729 [2008]; Ferraro v Ridge Car Serv.,49 AD3d 498 [2008]).
Finally, the plaintiff failed to set forth any competent medical evidence to establish that shesustained a medically-determined injury of a nonpermanent nature which prevented her fromperforming her usual and customary activities for 90 of the 180 days following the subjectaccident (see Sainte-Aime v Ho, 274 AD2d 569 [2000]). Skelos, J.P., Florio, Balkin,Belen and Austin, JJ., concur.