Letellier v. Walker

222 A.D.2d 658, 635 N.Y.S.2d 682, 1995 N.Y. App. Div. LEXIS 13946

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1995
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated December 9, 1994, which, inter alia, granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The affidavit and report prepared by Dr. Howard B. Reiser, a neurologist, which the defendant submitted in support of her cross motion for summary judgment made out a prima facie case that the plaintiff had not sustained a serious injury as defined by Insurance Law § 5102 (d).

In opposition to the cross motion, the plaintiff submitted the affidavit and report of Sharon Zeevi, a chiropractor, and the affirmation and report of Edouard Kamhi, an orthopedist. These documents were prepared approximately two years after the physical examinations and the Magnetic Resonance Imaging procedure upon which the opinions thereon were based (see, Beckett v Conte, 176 AD2d 774; Philpotts v Petrovic, 160 AD2d 856; Covington v Cinnirella, 146 AD2d 565). Thus, there was insufficient proof of the duration of the alleged impairment.

Moreover, in light of the plaintiff’s admission in her bill of particulars that she missed less than three weeks of work as a result of the accident, we further conclude that the plaintiff failed to raise a triable issue of fact as to whether her injuries prevented her from performing "substantially all” of the material acts constituting her customary daily activities during at least 90 out of the first 180 days following the accident (see, Covington v Cinnirella, supra). Mangano, P. J., Miller, Copertino, Santucci and Hart, JJ., concur.