| Euvino v Rauchbauer |
| 2010 NY Slip Op 02090 [71 AD3d 820] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Diane Euvino, Appellant, v Joseph Rauchbauer et al.,Respondents. |
—[*1] Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina and Andrea M. Alonso ofcounsel), for respondents.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Queens County (Agate, J.),entered May 28, 2009, as granted that branch of the defendants' motion which was for summaryjudgment dismissing the first cause of action to recover damages for personal injuries on theground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants established, prima facie, through the affirmed reports of their expertneurologist and orthopedist, as well as the plaintiff's deposition testimony, that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Richards v Tyson, 64 AD3d 760, 761 [2009]; Berson v Rosada Cab Corp., 62 AD3d636, 637 [2009]; Byrd v J.R.R.Limo, 61 AD3d 801, 802 [2009]). In opposition, the plaintiff's submissions wereinsufficient to raise a triable issue of fact as to whether she sustained a serious injury.
The plaintiff submitted affirmations from four physicians, none of whom saw the plaintiffduring the first year after the accident. The plaintiff did not provide any affirmations from any ofthe physicians who had treated her in the months immediately following the accident, nor did shesubmit any medical records from that time period, although they were available from her initialtreating physician's office after he died and physicians from his practice continued to treat her.She therefore failed to set forth any evidence that she suffered from any injuriescontemporaneous with the accident (seeCollado v Satellite Solutions & Electronics of WNY, LLC, 56 AD3d 411 [2008]; Kurin v Zyuz, 54 AD3d 902, 903[2008]; Perdomo v Scott, 50 AD3d1115, 1116 [2008]; Scotto vSuh, 50 AD3d 1012, 1013 [2008]; Morris v Edmond, 48 AD3d 432, 433 [2008]). In addition, none ofthe physicians indicated that they had reviewed the medical records from an accident that hadoccurred just a month before the instant accident and in which the plaintiff had injured her backand left arm (see Cantave v Gelle,60 AD3d 988, 989 [2009]; Gentilella v Board of Educ. [*2]of WantaghUnion Free School Dist., 60 AD3d 629, 630 [2009]; Silla v Mohammad, 52 AD3d 681, 682 [2008]). Accordingly, thedefendants were entitled to summary judgment dismissing the first cause of action to recoverdamages for personal injuries. Dillon, J.P., Miller, Balkin, Leventhal and Austin, JJ., concur.