Johns v Osei
Decided on August 24, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
Melva Johns and Clifton Johns, Plaintiffs-Appellants,
Michael Osei and Nana Appiah, Defendants, -and- Aurian Rodrigues, Defendant-Respondent.
Plaintiffs appeal from an order of the Civil Court of the City of New York, Bronx County
(Sharon A.M. Aarons, J.), entered August 1, 2008, which granted the motion of defendant
Rodrigues for summary judgment dismissing the complaint.
Order (Sharon A.M. Aarons, J.), entered August 1, 2008, affirmed, with $10 costs.
Defendant Rodrigues made a prima facie showing of entitlement to summary judgment on
the threshold serious injury issue (see Insurance Law § 5102[d]) through the
affirmed reports of a neurologist and orthopedist, who found that the injured plaintiff had normal
ranges of motion of the cervical and lumbar spine, and no permanent disability as a result of the
1997 motor vehicle accident (see Johnson v Paulino, 49 AD3d 379 ). Plaintiff's
failure, in opposition, to offer any explanation for her cessation of treatment for nearly eight
years is fatal to her serious injury claim (see Rubensccastro v Alfaro, 29 AD3d 436
). The conclusory opinion of plaintiff's physician, offered for the first time in 2008, that
plaintiff, during the "hiatus" in treatment, had "reached maximum medical improvement" was
insufficient to explain the gap (see DeSouza v Hamilton, 55 AD3d 352 . Nor did
plaintiff submit any competent medical evidence detailing material restrictions of "substantially
all" of her usual daily activities in support of her "90/180 day" claim (see Uddin v
Cooper, 32 AD3d 270 , lv denied 8 NY3d 808 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: August 24, 2009