Colon v Maldonado

[*1] Colon v Maldonado 2010 NY Slip Op 51266(U) [28 Misc 3d 130(A)] Decided on July 19, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 19, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570328/10.

Ivette Colon, Plaintiff-

against

Humberto C. Maldonado and Deluxe M & M Service, Inc., Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), dated April 24, 2008, which granted defendants' motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), dated April 24, 2008, affirmed, without costs.

Defendants made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) in the 2001 motor vehicle accident. Defendants submitted the affirmed reports of an orthopedist and neurologist, both of whom examined plaintiff and concluded, based upon objective testing, that plaintiff had recovered from sprain and strain injuries with full range of motion and was neurologically normal (see Cabrera v Gilpin, 72 AD3d 552 [2010]). In opposition, plaintiff failed to raise a triable issue. Critically, plaintiff's treating physician's 2008 affirmed report failed to address an intervening motor vehicle accident that occurred in 2006 in which plaintiff injured her neck and knee, and underwent extensive therapy as a result thereof. Plaintiff's physician's failure to account for, or even mention, the intervening accident in 2006 renders speculative his conclusion that plaintiff's injuries were related to the 2001 accident (see Zhijian Yang v Alston, 73 AD3d 562 [2010]; see also Pommells v Perez, 4 NY3d 566, 572 [2005]). Nor did plaintiff submit competent evidence of her course of treatment for the 2001 accident or its frequency (see Thompson v Abbasi,15 AD3d 95 [2005]; Bent v Jackson,15 AD3d 46 [2005]).

Additionally, no triable issue exists regarding plaintiff's claim of injury under the "90/180-day" category. Plaintiff acknowledged at her deposition that she was confined to home for no more than one week, and she alleged no significant restrictions in her daily activities (see Gibbs v Hee Hong, 63 AD3d 559 [2009]; see also Cruz v Aponte, 60 AD3d 431 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: July 19, 2010