| Sierra v Gonzalez First Limo |
| 2010 NY Slip Op 02123 [71 AD3d 864] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Francisco Sierra et al., Respondents, v Gonzalez FirstLimo et al., Appellants. |
—[*1] Steinberg & Gruber, P.C., Garden City, N.Y. (Hermann P. Gruber of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (F. Rivera, J.), dated May 27, 2009, which denied their motionfor summary judgment dismissing the complaint on the ground that neither plaintiff sustained aserious 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 established, prima facie, that neither plaintiff sustained a serious injurywithin the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). At his deposition,the plaintiff Francisco Sierra acknowledged that he missed approximately two or three days ofwork during the month following the subject motor vehicle accident and that there was no periodof time when he could not work at all as a result of the accident (see Morris v Edmond, 48 AD3d432 [2008]). The plaintiff Julia Sierra's deposition showed that she was not confined to herbed for any length of time as a result of the accident. Moreover, the affirmed medical reports ofthe defendants' neurologist and orthopedist concluded, based upon objective range-of-motiontests, that each of the plaintiffs had full range of motion in the cervical and lumbar regions oftheir spine, and in both shoulders.
In opposition to the motion, both of the plaintiffs failed to present any range of motionfindings which were contemporaneous with the subject accident (see Taylor v Flaherty, 65 AD3d1328 [2009]; Fung v Uddin, 60AD3d 992 [2009]; Gould vOmbrellino, 57 AD3d 608 [2008]; Kuchero v Tabachnikov, 54 AD3d 729 [2008]; Ferraro v Ridge Car Serv., 49 AD3d498 [2008]). Both plaintiffs also failed to proffer competent medical evidence that theysustained a medically-determined injury of a nonpermanent nature which prevented them, for 90of the 180 days following the subject accident, from performing their usual and customaryactivities (see Morris v Edmond, 48 AD3d at 433). Therefore, the evidence submitted bythe plaintiffs failed to [*2]raise a triable issue of fact (seeCPLR 3212 [b]), and the Supreme Court should have granted the defendants' motion. Dillon,J.P., Miller, Balkin, Leventhal and Austin, JJ., concur. [Prior Case History: 23 Misc 3d1137(A), 2009 NY Slip Op 51175(U).]