Rodriguez v Herbert

Rodriguez v Herbert 2006 NY Slip Op 08657 [34 AD3d 345] November 21, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Felipe Rodriguez, Appellant,
v
Jeanette J. Herbert et al., Respondents.

—[*1]Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 24, 2005, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Even though the time plaintiff spent under treatment by different physicians after his accident exceeds 90 days, he failed to establish, by competent medical evidence, that during this period he was prevented from performing substantially all of the material acts constituting his customary daily activities during at least 90 of the first 180 days following the accident (Insurance Law § 5102 [d]; see Thompson v Abbasi, 15 AD3d 95, 100-101 [2005]). Plaintiff's deposition testimony excerpts are insufficient to raise a triable issue of fact. Concur—Tom, J.P., Andrias, Saxe, Gonzalez and Sweeny, JJ.