Bank of America v. Solow

Feb 24, 2009
Versions:59 A.D.3d 304
874 N.Y.S.2d 48

Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered December 17, 2007, which granted defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a “serious injury” within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.

Defendants established prima facie that plaintiff did not sustain a serious injury of either a permanent or a nonpermanent nature by submitting medical evidence indicating that his spinal and shoulder injuries had resolved within two months after the accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). In opposition, plaintiff failed to adequately explain the three-year gap in his treatment (see Pommells v Perez, 4 NY3d 566, 574 [2005]). As to the “90/180” category, plaintiff failed to support his claim with objective evidence of a “medically determined injury or impairment of a non-permanent nature” (Insurance Law § 5102 [d]; Toure at 357). Concur—Gonzalez, J.P., Sweeny, Renwick and Freedman, JJ.