Dilone v. Cheng

56 A.D.2d 397, 868 N.Y.S.2d 52

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 2008
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 20, 2007, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant’s experts’ findings, upon objective testing, that plaintiffs injuries had resolved by the time of examination nine months after the accident demonstrated prima facie that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) (see Brown v Achy, 9 AD3d 30, 31 [2004]).

As plaintiffs submissions address her condition within 92 days of the accident, plaintiff failed to rebut defendant’s experts’

findings (see Hoisington v Santos, 48 AD3d 333 [2008]). Her osteopath’s report failed to establish an adequate causal connection between plaintiffs claimed continuing range of motion limitations and the accident. Moreover, plaintiff did not adequately explain the 14-month gap in her treatment (see Pommells v Perez, 4 NY3d 566, 574 [2005]).

Plaintiffs submissions were also insufficient to raise an.issue of fact as to her 90/180-day claim (see Grimes-Carrion v Carroll, 17 AD3d 296, 297 [2005]; Thompson v Abbasi, 15 AD3d 95, 100-101 [2005]). Concur—Mazzarelli, J.E, Friedman, Nardelli, Buckley and Freedman, JJ.