Aponte v. Tusa

28 A.D.3d 407, 811 N.Y.S.2d 569

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Hart, J.), dated May 12, 2005, which denied his 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 admissible proof submitted by the defendant, showing that the plaintiff had full range of motion and suffered from no disability causally related to the automobile accident about one week after the automobile accident, was sufficient to establish a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), despite a magnetic resonance imaging report showing a bulging disc (see Kearse v New York City Tr. Auth., 16 AD3d 45 [2005]).

In opposition to the motion, the plaintiff failed to adequately explain the almost seven-year gap in her medical treatment (see Batista v Olivo, 17 AD3d 494 [2005]). Moreover, the plaintiff failed to raise a triable issue of fact as to her alleged inability to perform substantially all of her daily activities for not less than 90 of the first 180 days following the accident as a result of the accident (see Sainte-Aime v Ho, 274 AD2d 569 [2000]). Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.