Mejia v. Thom

280 A.D.2d 528, 720 N.Y.S.2d 401, 2001 N.Y. App. Div. LEXIS 1570

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Carter, J.), dated March 2, 2000, which denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff Ana Mejia 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 defendant made a prima facie showing of her entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the plaintiff Ana Mejia (hereinafter the injured plaintiff) sustained a serious injury within the meaning of Insurance Law § 5102 (d). In the initial examination, the injured plaintiffs chiropractor failed to quantify the alleged range of motion restrictions in her lumbar or cervical spine (see, Herman v Church, 276 AD2d 471; Reynolds v Cleary, 274 AD2d 509; Linares v Mompoint, 273 AD2d 446). Furthermore, the chiropractor failed to explain the more than two-year gap between his first examination and his most recent examination of the injured plaintiff, and failed to set forth the treatment, if any, that the injured plaintiff received for her alleged injuries during that time (see, Reynolds v Cleary, supra; Smith v Askew, 264 AD2d 834; Bandoian v Bernstein, 254 AD2d 205; Miller v Donohue, 250 AD2d 825). Therefore, the defendant’s motion for summary judgment dismissing the complaint should have been granted. O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.