Li v. Woo Sung Yun

27 A.D.3d 624, 812 N.Y.S.2d 604

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Woo Sung Yun appeals, as limited by his brief, from so much of an order of Supreme Court, Kings County (Knipel, J.), dated January 19, 2005, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and the defendants Kuen Tak Wong and Wai Lin Cheung separately appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground, inter alia, 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 one bill of costs to the defendants appearing separately and filing separate briefs, the motions are granted, and the complaint is dismissed.

The defendants established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; Giraldo v Mandanici, 24 AD3d 419 [2005]; Kearse v New York City Tr. Auth., 16 AD3d 45 [2005]). In opposition, the plaintiff did not submit medical proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions in her spine or left knee (see Nemchyonok v Peng Liu Ying, 2 AD3d 421 [2003]; Ifrach v Neiman, 306 AD2d 380 [2003]; Pajda v Pedone, 303 AD2d 729 [2003]; Lanza v Carlick, 279 AD2d 613 [2001]; Passarelle v Burger, 278 AD2d 294 [2000]). Also, the affirmed report of the plaintiffs physician, which was based on an examination conducted over six years after the plaintiffs last medical treatment, did not explain the lengthy gap in treatment and, therefore, was insufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury (see Pommells v Perez, 4 NY3d 566 [2005]; Ali v Vasquez, 19 AD3d 520 [2005]; Batista v Olivo, 17 AD3d 494 [2005]).

In light of out determination, we need not reach the remaining contention of the defendants Wai Lin Cheung and Kuen Tak Wong. Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.