Aguirre v Reynoso

[*1] Aguirre v Reynoso 2008 NY Slip Op 52219(U) [21 Misc 3d 136(A)] [21 Misc 3d 136(A)] Decided on October 30, 2008 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and STEINHARDT, JJ
2007-1532 Q C.

Kayla Aguirre, Appellant,

against

Domenica Reynoso and "JANE DOE", Respondents. DOMENICA REYNOSO, Third-Party Plaintiff, MANUEL VARGAS and CCY LIMO, INC., Third-Party Defendants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Denis Butler, J.), entered May 30, 2007. The order granted defendant Domenica Reynoso's motion for summary judgment dismissing the complaint.

Order modified by providing that defendant Domenica Reynoso's motion for summary judgment is granted only to the extent of deeming as established facts for all
purposes in the action, pursuant to CPLR 3212 (g), that plaintiff did not satisfy the threshold requirement of suffering a serious injury under the permanent loss of use, permanent consequential limitation of use and significant limitation of use categories of serious injury as defined under Insurance Law § 5102 (d); as so modified, affirmed without costs.

In this action to recover damages for personal injuries allegedly sustained in a motor vehicle accident, the court granted a motion by defendant Domenica Reynoso for summary [*2]judgment dismissing the complaint on the threshold ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Plaintiff's appeal ensued.

The medical evidence submitted by the moving defendant in support of her motion for summary judgment made out a prima facie case that plaintiff did not sustain a serious injury under the permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; and significant limitation of use of a body function or system categories of serious injury as defined in Insurance Law § 5102 (d). Accordingly, the burden shifted to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]) as to those three categories.

In opposition, plaintiff failed to raise a triable issue of fact as to the aforementioned three categories. The affirmation of plaintiff's treating physician did not constitute competent medical proof of a recent examination. Said affirmation was insufficient to establish that plaintiff suffered a serious injury because it consisted of conclusory assertions tailored to satisfy statutory requirements (Cornelius v Cintas Corp., 50 AD3d 1085 [2008]; Slavin v Associates Leasing Inc., 273 AD2d 372 [2000]). Further, plaintiff's subjective complaints of pain did not raise a triable issue as to whether she sustained a serious injury (see Mahabir v Ally, 26 AD3d 314 [2006]).

Defendant Reynoso, however, failed to establish prima facie that plaintiff's alleged injuries prevented her "from performing substantially all of her material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following" the accident (Insurance Law § 5102 [d]). The moving papers failed to adequately address plaintiff's allegations contained in the verified bill of particulars. We note that defendant Reynoso's physician, who examined plaintiff approximately 18 months after the accident, did not relate his medical findings to the period immediately following the accident (see Sullivan v Illoge, 50 AD3d 886 [2008]).

Accordingly, defendant Domenica Reynoso's motion for summary judgment is granted to the extent of finding for all purposes in this action (see CPLR 3212 [g]) that plaintiff did not suffer a serious injury under the permanent loss of use, permanent consequential limitation of use and significant limitation of use categories.Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 2008