Anne Marie Kulanda v Nelson Ponce

Kulanda v Ponce 2004 NY Slip Op 09603 [13 AD3d 592] December 27, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Anne Marie Kulanda et al., Appellants,
v
Nelson Ponce 3rd et al., Respondents.

—[*1]

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Kitzes, J.), entered November 10, 2003, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendants made a prima facie showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d) through the submission of the affirmed medical reports of an orthopedist and a neurologist, who examined both of the plaintiffs approximately one year and three months after the accident, and determined that neither of them had any permanent injury nor any disability, restriction, or limitation of motion (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmations of the plaintiffs' physicians submitted in opposition to the defendants' motion failed to account for the gap of nearly 1½ years between their last examinations of the plaintiffs in 2002 and their more recent examinations in September 2003 (see Jimenez v Kambli, 272 AD2d 581, 582 [2000]; Smith v Askew, 264 AD2d 834 [1999]). Moreover, the conclusions and opinions expressed in the affirmations were partially based upon the unsworn reports prepared by other physicians (see Friedman v U-Haul Truck Rental, 216 AD2d 266 [1995]). [*2]

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment. Santucci, J.P., S. Miller, Cozier and Fisher, JJ., concur.