Opinion
570277/03.
Decided March 30, 2004.
Plaintiff, as limited by his brief, appeals from so much of an order of the Civil Court, Bronx County, entered October 26, 2001 (Wilma Guzman, J.) as granted the cross motion of defendants Salem Truck Leasing and Eddie Howell (joined by defendant Ashley Harris) for summary judgment dismissing the complaint on the ground that plaintiff had not sustained a "serious injury" (Insurance Law § 5102[d]).
Order entered October 26, 2001 (Wilma Guzman, J.) affirmed, with $10 costs.
PRESENT: HON. WILLIAM J. DAVIS, J.P. HON. PHYLLIS GANGEL-JACOB HON. MARTIN SCHOENFELD, Justices.
Defendants' motion for summary judgment was properly granted. Plaintiff's submission did not rebut defendants' evidence that plaintiff fully recovered from soft tissue injuries and had no neurological or skeletal impairment cased by the accident. Plaintiff's doctors failed to explain a three year gap in treatment (see, Pommells v. Perez, ___ AD2d ___, 2004 WL 213164) and did not remark upon preexisting spinal abnormalities found by defendants' expert (see, Franchini v. Palmieri, 1 NY3d 536; [2003]; Shinn v. Catanzaro, 1 AD3d 195; Francis v. Christopher, 302 AD2d 425). Plaintiff's doctor characterized his restrictions as "mild" and "moderate" and opined that he would be "somewhat limited" in daily activities. Objective medical evidence of quantified restrictions of motion came from a physical examination of plaintiff four years after the accident. This evidence fell short of establishing that plaintiff sustained "significant" limitation of use of his neck and spine, and was insufficient to show that he was prevented from performing "substantially all" of his usual daily activities for 90 of the 180 days immediately following the accident (see, Pommells, supra; Nelson v. Distant, 308 AD2d 338).
This constitutes the decision and order of the court.