| Jack v Acapulco Car Serv., Inc. |
| 2010 NY Slip Op 02923 [72 AD3d 646] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Chorinne Jack, Respondent, v Acapulco Car Service, Inc.,et al., Defendants, and Leader Limousine Corp., Appellant. |
—[*1] Jonathan D'Agostino & Associates, P.C., Staten Island, N.Y. (Glen Devora of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Leader Limousine Corp.appeals, as limited by its brief, from so much an order of the Supreme Court, Kings County(Schack, J.), dated March 23, 2009, as denied its motion for summary judgment dismissing thecomplaint insofar as asserted against it on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant Leader Limousine Corp. for summary judgment dismissing thecomplaint insofar as asserted against it on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) is granted.
The appellant met its prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triableissue of fact.
While Dr. Steven Apicerno, the plaintiff's treating chiropractor, noted significant limitationsin the range of motion of the cervical region of the plaintiff's spine in his affidavit based on arecent examination, neither he nor the plaintiff offered competent medical evidence of theexistence of significant limitations in that region of the spine that were contemporaneous withthe subject accident (see Bleszcz vHiscock, 69 AD3d 890 [2010]; Taylor v Flaherty, 65 AD3d 1328 [2009]; Fung v Uddin, 60 AD3d 992[2009]; Gould v Ombrellino, 57AD3d 608 [2008]; Kuchero vTabachnikov, 54 AD3d 729 [2008]; Ferraro v Ridge Car Serv., 49 AD3d 498 [2008]). Thus, theplaintiff did not raise a triable issue of fact as to whether she sustained a serious injury under thepermanent loss of use, the permanent consequential limitation of use, or the significant limitationof use categories of Insurance Law § 5102 (d) (see Bleszcz v Hiscock, 69 AD3d at891; Taylor v Flaherty, 65 AD3d at 1328-1329; Ferraro [*2]v Ridge Car Serv., 49 AD3d at 498).
Further, the plaintiff failed to submit competent medical evidence that the injuries sheallegedly sustained in the subject accident rendered her unable to perform substantially all of herusual and customary daily activities for not less than 90 days of the first 180 days subsequent tothe subject accident (see Bleszcz v Hiscock, 69 AD3d at 891-892; Sainte-Aime vHo, 274 AD2d 569 [2000]). Indeed, the plaintiff submitted no such medical evidenceconcerning this period of time. Rivera, J.P., Florio, Miller, Chambers and Roman, JJ., concur.