Opinion
2004-03564.
June 6, 2005.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated March 9, 2004, which granted the separate motions of the defendant Musa Gundogan and the defendant Ali Liaqat 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).
DiJoseph Portegello, P.C., New York, N.Y. (Arnold E. DiJoseph III and Laurel L. Kallen of counsel), for appellant.
Isserlis Sullivan, P.C., Bethpage, N.Y. (Corinne I. Andersen of counsel), for respondent.
Cheven, Keely Hatzis, New York, N.Y. (Mayu Miyashita of counsel), for respondent Ali Liaqat.
Before: Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.
Ordered that the order is affirmed, with costs.
The affirmations of the defendants' examining neurologist and orthopedist, as well as the affirmation of a radiologist, were sufficient to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955). The affirmation of the plaintiff's treating physician, on the other hand, was based upon examinations that were made more than a year before the motions for summary judgment ( see Kauderer v. Penta, 261 AD2d 365; Carroll v. Jennings, 264 AD2d 494). Moreover, there was no competent medical evidence which would support a claim that the plaintiff was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days as a result of the subject accident ( see Sainte-Aime v. Ho, 274 AD2d 569; Jackson v. New York City Tr. Auth., 273 AD2d 200; Greene v. Miranda, 272 AD2d 441).