Fitzpatrick v Elrac Inc.

[*1] Fitzpatrick v Elrac Inc. 2010 NY Slip Op 51981(U) [29 Misc 3d 135(A)] Decided on November 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 18, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570638/10.

Matikaah Fitzpatrick, Plaintiff-Appellant,

against

Elrac Inc., Raheim J. Ortiz, Easy Way Corp. and Serigne Diaw, Defendants-Respondents.

Plaintiff, as limited by her brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Lizbeth Gonzàlez, J.), entered March 1, 2010, which granted the motion of defendants Easy Way Corp. and Serigne Diaw seeking summary judgment dismissing the complaint as against them, and the cross motion of defendant Raheim Ortiz seeking similar relief.

Per Curiam.

Order (Lizbeth Gonzàlez, J.), entered March 1, 2010, affirmed, with $10 costs.

Defendants met their initial burden of establishing that plaintiff did not sustain a serious injury (Insurance Law § 5102[d]) by submitting the affirmed reports of physicians who examined plaintiff, quantified normal ranges of motion in plaintiff's lumbar spine, cervical spine and shoulder, and concluded, based upon objective testing, that plaintiff, who suffered sprains and contusions that had resolved without permanent disability, had no objective abnormalities (see Mendez v Mendez, 72 AD3d 402 [2010]; Cekic v Zapata, 69 AD3d 464 [2010]). In opposition, plaintiff failed to submit admissible objective medical evidence of a serious injury contemporaneous with the accident (see Cabrera v Gilpin, 72 AD3d 552 [2010]; Toulson v Young Han Pae, 13 AD3d 317 [2004]). Moreover, neither plaintiff nor her doctor offered any explanation for the six- and eight-month gaps in her treatment (see generally Pommells v Perez, 4 NY3d 566 [2005]). Plaintiff's serious injury claim predicated on the 90/180-day category was refuted by the admission in her verified bill of particulars of a relatively brief convalescence, and plaintiff offered no competent medical proof substantiating her claim under that category (see Weinberg v Okapi Taxi, Inc., 73 AD3d 439 [2010]; Zhijian Yang v Alston,73 AD3d 562 [2010]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: November 18, 2010