Strok v. Chez

Dec 23, 2008
Versions:57 A.D.3d 887
869 N.Y.2d 345

On their motion for summary judgment, the defendants established, prima facie, their entitlement to judgment as a matter of law by 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 (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. Neither the plaintiff nor his examining orthopedist adequately explained a lengthy gap in the plaintiff‘s treatment (see Pommells v Perez, 4 NY3d 566, 574 [2005]; Sibrizzi v Davis, 7 AD3d 691 [2004]; cf. Black v Robinson, 305 AD2d 438, 439-440 [2003]). Accordingly, upon reargument, the Supreme Court should have adhered to its original determination granting the defendants’ motion for summary judgment dismissing the complaint (cf. Wei-San Hsu v Briscoe Protective Sys., Inc., 43 AD3d 916, 917 [2007]; Waring v Guirguis, 39 AD3d 741, 742 [2007]).

The defendants’ remaining contention has been rendered academic in light of our determination.

Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.