| Ovalles v Herrera |
| 2011 NY Slip Op 08643 [89 AD3d 636] |
| November 29, 2011 |
| Appellate Division, First Department |
| Elaine Y. Ovalles, Appellant, v Mario A. Herrera et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered December 3, 2010,which, in this action for personal injuries sustained in a motor vehicle accident, granteddefendants' motion for summary judgment dismissing the complaint on the ground that plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d),unanimously affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law. Defendantssubmitted, inter alia, the affirmed reports of a neurologist and an orthopedist, who examinedplaintiff and concluded that she had normal ranges of motion in her lumbar and cervical spine.To the extent the findings of the experts differed, such differences were not so significant as toaffect defendants' entitlement to summary judgment (see Feliz v Fragosa, 85 AD3d 417 [2011]).
In opposition, plaintiff did not raise a triable issue of fact. She failed to present anycompetent medical evidence contemporaneous to the time of the accident showing limitations inthe range of motion in her lumbar and cervical spine (see Rubencamp v Arrow Exterminating Co., Inc., 79 AD3d 509[2010]). Nor did she present any explanation for the absence of such records. The only objectiveevidence of limitation of motion is contained in a report of a physician who examined plaintiffseveral years after the accident. This finding is "too remote to raise an issue of fact as to whetherthe limitations were caused by the accident" (Lopez v Simpson, 39 AD3d 420, 421 [2007]).
Dismissal of plaintiff's claim under the 90/180-day category of Insurance Law § 5102(d) was also warranted. Defendants submitted plaintiff's testimony that she only missed two orthree days of work as a result of the accident (see De La Cruz v Hernandez, 84 AD3d 652 [2011]; Canelo v Genolg Tr., Inc., 82 AD3d584 [2011]). In opposition, plaintiff failed to raise a triable issue of fact.
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Andrias, Friedman, Catterson and Freedman, JJ.