Dilone v Tak Leu Cheng

Dilone v Tak Leu Cheng 2008 NY Slip Op 09288 [56 AD3d 397] November 25, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

Yvonne Dilone, Appellant,
v
Tak Leu Cheng, Respondent.

—[*1] Steven Siegel, P.C., Kew Gardens (Wendy Bishop of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Holly E. Peck of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 20, 2007, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant's experts' findings, upon objective testing, that plaintiff's injuries had resolved by the time of examination nine months after the accident demonstrated prima facie that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) (see Brown v Achy, 9 AD3d 30, 31 [2004]).

As plaintiff's submissions address her condition within 92 days of the accident, plaintiff failed to rebut defendant's experts' findings (see Hoisington v Santos, 48 AD3d 333 [2008]). Her osteopath's report failed to establish an adequate causal connection between plaintiff's claimed continuing range of motion limitations and the accident. Moreover, plaintiff did not adequately explain the 14-month gap in her treatment (see Pommells v Perez, 4 NY3d 566, 574 [2005]).

Plaintiff's submissions were also insufficient to raise an issue of fact as to her 90/180-day claim (see Grimes-Carrion v Carroll, 17 AD3d 296, 297 [2005]; Thompson v Abbasi, 15 AD3d 95, 100-101 [2005]). Concur—Mazzarelli, J.P., Friedman, Nardelli, Buckley and Freedman, JJ.