| Posa v Guerrero |
| 2010 NY Slip Op 07730 [77 AD3d 898] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Antonia Posa, Respondent, v Enrique G. Guerrero et al.,Appellants. |
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In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Jacobson, J.), dated April 8, 2010, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain 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 Supreme Court correctly determined that the defendants, in support of their motion, mettheir prima facie burden of showing that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure vAvis 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.
The plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injuryunder the permanent loss, permanent consequential limitation of use, and/or significant limitationof use categories of Insurance Law § 5102 (d) because she failed to submit competentmedical evidence that revealed the existence of a significant limitation in her cervical spine,lumbar spine, right shoulder, right elbow, or right wrist that was contemporaneous with thesubject accident (see Srebnick vQuinn, 75 AD3d 637 [2010]; Catalano v Kopmann, 73 AD3d 963 [2010]; Bleszcz v Hiscock, 69 AD3d 890[2010]; 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]). In addition, the report of Dr. David Lifschutz dated October 11, 2007, and thereports of Dr. Andrew Miller, except those dated August 3, 2007, and October 28, 2009,respectively, were insufficient to raise a triable issue of fact because they were unaffirmed(see Grasso v Angerami, 79 NY2d 813 [1991]; Resek v Morreale, 74 AD3d 1043 [2010]; Bleszcz v Hiscock, 69 AD3d 890[2010]; Singh v Mohamed, 54AD3d 933 [2008]; Verette vZia, 44 AD3d 747 [2007]; Nociforo [*2]v Penna, 42 AD3d514 [2007]).
The plaintiff failed to set forth competent medical evidence that the injuries she allegedlysustained as a result of the subject accident rendered her unable to perform substantially all of herdaily activities for not less than 90 days of the first 180 days thereafter (see Nieves v Michael, 73 AD3d716 [2010]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). Fisher, J.P., Dillon, Balkin,Chambers and Sgroi, JJ., concur.