Maldonado v. Ying Li

Dec 6, 2004
Versions:13 A.D.3d 344
786 N.Y.S.2d 553
2004 N.Y. App. Div. LEXIS 14829

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated August-11, 2003, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury through the affirmations of their examining orthopedist, neurologist, and radiologist (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiffs physician failed to cite the objective tests he performed to measure the plaintiffs limitation of motion (see Jimenez v Kambli, 272 AD2d 581 [2000]; Kauderer v Penta, 261 AD2d 365 [1999]; Giannakis v Paschilidou, 212 AD2d 502 [1995]). Further, the plaintiff’s physician failed to address in his affirmation the nearly three-year gap between the end of his medical treatment and subsequent reexamination of the plaintiff (see Jimenez v Kambli, supra; Smith v Askew, 264 AD2d 834 [1999]). Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint. Santucci, J.P., S. Miller, Smith, Cozier and Fisher, JJ., concur.