Hernandez v Licona

[*1] Hernandez v Licona 2009 NY Slip Op 52115(U) [25 Misc 3d 130(A)] Decided on October 13, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-1642 Q C.

Olga Hernandez and MIGUEL DE LA ROSA, Appellants,

against

Eddie R. Licona and RUBEN LICONA, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered August 5, 2008, deemed from a judgment of the same court entered August 27, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 5, 2008 order granting defendants' motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

Plaintiffs commenced this action to recover damages for personal injuries allegedly sustained in a motor vehicle accident on April 16, 2006. In April 2008, defendants moved for summary judgment dismissing the complaint on the ground that plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court granted the motion, and this appeal by plaintiffs ensued.

Since plaintiffs raise no argument on appeal regarding defendants' prima facie case, we do not pass on the propriety of the determination of the Civil Court with respect thereto. There is no merit to plaintiffs' assertion that they raised a triable issue of fact with respect to whether they had suffered serious injuries under the significant limitation of use of a body function or system or the 90/180-day categories of Insurance Law § 5102 (d). Plaintiffs principally relied upon affirmed narrative reports of their physician, who examined each plaintiff on December 21, 2006. The medical reports failed to raise a triable issue of fact as to the significant limitation of use category since the findings contained therein were not based on a recent examination (see Berkowitz v Taylor, 47 AD3d 740 [2008]; Ali v Mirshah, 41 AD3d 748 [2007]; Mejia v DeRose, 35 AD3d 407 [2006]; Laruffa v Yui Ming Lau, 32 AD3d 996 [2006]). Furthermore, plaintiffs failed to explain the 15-month gap in Olga Hernandez's treatment (see Pommells v Perez, 4 NY3d 566 [2005]; Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712 [2009]).

Furthermore, plaintiffs did not demonstrate the existence of a triable issue with respect to the 90/180-day category of Insurance Law § 5102 (d). They presented no competent medical evidence to establish that they had sustained any medically determined injuries of a nonpermanent nature which prevented them from performing substantially all of the material acts [*2]which constituted their usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see Pamphile v Bastien, 61 AD3d 659 [2009]; LaMarre v Michelle Taxi, Inc., 60 AD3d 911 [2009]). Consequently, the judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 13, 2009