Opinion
570334/09.
Decided March 3, 2010.
Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered November 17, 2008, which denied their motion for summary judgment dismissing the complaint of plaintiffs Trown Davis and Duane James.
Order (Fernando Tapia, J.), entered November 17, 2008, reversed, with $10 costs, motion granted, and the complaint of plaintiffs Trown Davis and Duane James is dismissed. The Clerk is directed to enter judgment accordingly.
PRESENT: McKeon, P.J., Shulman, J.
In opposition to defendants' prima facie showing that plaintiffs Trown Davis and Duane James did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d), plaintiffs failed to raise a triable issue. Plaintiffs offered no objective medical findings contemporaneous with the motor vehicle accident showing that they experienced any range of motion restrictions ( see Alicea v Troy Trans, Inc., 60 AD3d 521; Thompson v Abbasi, 15 AD3d 95; Toulson v Young Han Pae, 13 AD3d 317). We note that plaintiff James, who admittedly had continuing health insurance coverage but asserted conclusorily that he discontinued treatment because he could "not afford" the requisite copayments and deductibles, failed to adequately explain the cessation in treatment ( see generally Cruz v Lugo, 67 AD3d 495).
Nor did plaintiffs submit any competent evidence that they sustained medically determined injuries of a nonpermanent nature that prevented them from performing "substantially all" of their daily activities during the relevant 90/180-day period ( see Taylor v American Radio Dispatcher, Inc., 63 AD3d 407; Brantley v New York City Metro. Tr. Auth., 48 AD3d 313).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
In opposition to defendants' prima facie showing that plaintiffs Trown Davis and Duane James did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d), plaintiffs failed to raise a triable issue. Plaintiffs offered no objective medical findings contemporaneous with the motor vehicle accident showing that they experienced any range of motion restrictions ( see Alicea v Troy Trans, Inc., 60 AD3d 521; Thompson v Abbasi, 15 AD3d 95; Toulson v Young Han Pae, 13 AD3d 317). We note that plaintiff James, who admittedly had continuing health insurance coverage but asserted conclusorily that he discontinued treatment because he could "not afford" the requisite copayments and deductibles, failed to adequately explain the cessation in treatment ( see generally Cruz v Lugo, 67 AD3d 495).
Nor did plaintiffs submit any competent evidence that they sustained medically determined injuries of a nonpermanent nature that prevented them from performing "substantially all" of their daily activities during the relevant 90/180-day period ( see Taylor v American Radio Dispatcher, Inc., 63 AD3d 407; Brantley v New York City Metro. Tr. Auth., 48 AD3d 313).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.