Mendes v. Codianni

Jun 28, 2004
Versions:8 A.D.3d 636
778 N.Y.S.2d 908
2004 N.Y. App. Div. LEXIS 9250

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Dollard, J.), dated July 17, 2003, which granted the defendant’s 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 affirmed, with costs.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident through the submission of the plaintiff’s deposition testimony and medical records, and the affirmed medical report *637of the defendant’s examining physician (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmation of the plaintiffs physician submitted in opposition to the defendant’s motion was insufficient to raise a triable issue of fact. The limitations in the plaintiffs rotational movement of her cervical spine were of an insignificant nature (see Trotter v Hart, 285 AD2d 772 [2001]; Williams v Ciaramella, 250 AD2d 763 [1998]; Cabri v Myung-Soo Park, 260 AD2d 525 [1999] ; Medina v Zalmen Reis & Assoc., 239 AD2d 394 [1997]; Waldman v Dong Kook Chang, 175 AD2d 204 [1991]).

Moreover, the plaintiff failed to submit any competent medical evidence to support her claim that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days after the subject accident as a result of the accident (see Sainte-Aime v Ho, 274 AD2d 569 [2000]; Jackson v New York City Tr. Auth., 273 AD2d 200 [2000]; Greene v Miranda, 272 AD2d 441 [2000]; Arshad v Gomer, 268 AD2d 450 [2000] ; Bennett v Reed, 263 AD2d 800 [1999]; DiNunzio v County of Suffolk, 256 AD2d 498, 499 [1998]).

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Altman, J.P., Goldstein, Schmidt, Cozier and Skelos, JJ., concur.