Hernandez v. Cerda

271 A.D.2d 569, 707 N.Y.S.2d 332, 2000 N.Y. App. Div. LEXIS 4326

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated June 11, 1999, 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 medical evidence submitted by the defendant in support of her motion for summary judgment made out a prima facie case (see, CPLR 3212 [b]) that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). In opposition, the plaintiff claimed that he saw a doctor the day after the accident, but failed to submit an affidavit. Accordingly, the plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury (see, Smith v Askew, 264 AD2d 834). Moreover, in light of the plaintiff’s admission that he missed only two weeks of work and then returned to work full time, he failed to raise a triable issue of fact as to whether his alleged injuries prevented him from performing substantially all of the material acts constituting his customary daily activities during at least 90 out of the first 180 days following the accident (see, Insurance Law § 5102 [d]; Lalli v Tamasi, 266 AD2d 266). O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.