| Delarosa v McLedo |
| 2010 NY Slip Op 05353 [74 AD3d 1012] |
| June 15, 2010 |
| Appellate Division, Second Department |
| David Delarosa, Appellant, v Daniel McLedo et al.,Respondents. |
—[*1] Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum],of counsel), for respondents.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Winslow, J.), entered August 26, 2009, whichgranted the defendants' motion for summary judgment dismissing the complaint on the groundthat he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants met their 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 the plaintiff submitted medical evidence that revealed the existence of significantlimitations in the cervical and lumbar regions of his spine based on a recent examination by Dr.Paul Beck, he failed to offer objective medical evidence of significant limitations in thoseregions of his spine that were contemporaneous with the subject accident (see Bleszcz v Hiscock, 69 AD3d890 [2010]; Taylor v Flaherty,65 AD3d 1328 [2009]; Fung vUddin, 60 AD3d 992 [2009]; Gould v Ombrellino, 57 AD3d 608 [2008]; Kuchero v Tabachnikov, 54 AD3d729 [2008]; Ferraro v Ridge CarServ., 49 AD3d 498 [2008]). While the plaintiff relied on the affirmed medical reportsof Dr. Richard Morgan, Dr. Morgan did not examine the plaintiff until more than one year afterthe subject accident. Without findings contemporaneous with the accident, the plaintiff wasunable to raise a triable issue of fact as to whether he sustained a serious injury to the cervical orlumbar region of his spine under the permanent consequential limitation of use and/or thesignificant limitation of use categories of Insurance Law § 5102 (d) as a result of thesubject accident (see Jack v AcapulcoCar Serv., Inc., 72 AD3d 646 [2010]; Bleszcz v Hiscock, 69 AD3d at 891;Taylor v Flaherty, 65 AD3d at 1328-1329; Ferraro v Ridge Car Serv., 49 AD3dat 498). Dillon, J.P., Santucci, Balkin, Belen and Sgroi, JJ., concur.