| Britton v Villa Auto Corp. |
| 2011 NY Slip Op 08282 [89 AD3d 556] |
| November 17, 2011 |
| Appellate Division, First Department |
| Evelyn Britton, Respondent, v Villa Auto Corp. et al.,Appellants, et al., Defendant. |
—[*1] Patrick J. Hackett, Garden City, for respondent.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered April 15, 2010, which, tothe extent appealed from, denied defendants Villa Auto Corp.'s and Thami Boulabut's motion forsummary judgment dismissing the complaint as against them on the ground that plaintiff did notsuffer a "serious injury" within the meaning of Insurance Law § 5102 (d), unanimouslyreversed, on the law, without costs, and the motion granted, and, upon a search of the record,defendant Evanson's motion granted as well. The Clerk is directed to enter judgment dismissingthe complaint against all defendants.
Defendants moved for summary judgment and made out a prima facie showing that plaintiffdid not suffer a serious injury. In opposition to that motion, plaintiff offered no explanation forher failure to pursue any treatment for almost three years after the initial period of treatment thatencompassed less than two months (seePommells v Perez, 4 NY3d 566, 574 [2005]; Agramonte v Marvin, 22 AD3d 322 [2005]). In addition, althoughplaintiff testified that she underwent physical therapy for six months beginning a week after theaccident and that she stopped going because no-fault would no longer pay her bills, there is noevidence of this treatment in the record. To the contrary, the records of Dr. Rose, plaintiff'sexpert, suggest that if plaintiff went to physical therapy, she stopped going less than six weeksafter the accident.
Plaintiff failed to submit any competent objective medical or other evidence in support of her90/180-day claim. Her deposition testimony established that she was confined to bed and homefor less than one month after the accident (see Clemmer v Drah Cab Corp., 74 AD3d 660, 663 [2010]; Hospedales v "John Doe", 79 AD3d536 [2010]).
Defendant Evanson did not appeal from the denial of her motion for summary judgment.Nonetheless, she is entitled to summary dismissal of the complaint as against her, since "ifplaintiff cannot meet the threshold for serious injury against one defendant, she cannot meet itagainst the other" (Lopez vSimpson, 39 AD3d 420, 421 [2007]). Concur—Gonzalez, P.J., Tom, Catterson,Richter and RomÁn, JJ.