| Komina v Gil |
| 2013 NY Slip Op 04744 [107 AD3d 596] |
| June 25, 2013 |
| Appellate Division, First Department |
| Felicia Komina, Appellant, v Ramon DeJesus Gilet al., Respondents. |
—[*1] Richard T. Lau & Associates, Jericho (Kathleen E. Fioretti of counsel), for RamonDeJesus Gil and Onesimo Volquez, respondents. Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for UchennaGogor, respondent.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered March 12, 2012,which granted defendants' motions for summary judgment dismissing the complaintbased on plaintiff's failure to demonstrate that she suffered any serious injury pursuant toInsurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants made a prima facie showing that plaintiff did not suffer a serious injuryto her lumbar or cervical spine. Defendants submitted, among other things, the affirmedreport of an orthopedist who opined that plaintiff had no deficits in range of motion inher lumbar or cervical spine, and the affirmed report of a radiologist who opined that theMRI films of plaintiff's lumbar and cervical spine showed no herniated or bulging discsor any other evidence of traumatic injury (see Mitrotti v Elia, 91 AD3d 449, 449-450 [1st Dept2012]; Graves v L&N CarServ., 87 AD3d 878, 879 [1st Dept 2011]).
In opposition, although plaintiff's treating chiropractor found limitations in the rangeof motion of her cervical and lumbar spines, plaintiff failed to submit any objectivemedical proof of these injuries (see Thomas v City of New York, 99 AD3d 580, 581 [1stDept 2012]). Furthermore, plaintiff's chiropractor made no attempt to explain theconflicting findings of the tests he performed during plaintiff's physical examination andthe MRI reports of plaintiff's radiologist, which found normal lumbar and cervical spineimages with no evidence of disc bulging or herniation, and defendants are thus entitled tosummary judgment on this basis (Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011],citing Pou v E&S WholesaleMeats, Inc., 68 AD3d 446, 447 [1st Dept 2009]).
Defendants also established prima facie that plaintiff did not suffer a 90/180-dayinjury by submitting plaintiff's deposition testimony that she was confined to home foronly one week and that she resumed her collegiate studies by taking three courses whenthe fall semester began in September 2009, less than two months after the accident(see Mitrotti, 91 AD3d at 450). Although plaintiff offered proof that herchiropractor directed her not to return to work within the [*2]90 days following the accident, in light of the lack ofrestrictions imposed upon her returning to school, plaintiff failed to raise an issue of factas to whether her claimed injuries prevented her from "performing substantially all of thematerial acts which constitute[d] [her] usual and customary daily activities" (InsuranceLaw § 5102 [d]; seeMerrick v Lopez-Garcia, 100 AD3d 456, 457 [1st Dept 2012]).
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Andrias, J.P., Friedman, Sweeny, Saxe and Richter, JJ.