Wei-San Hsu v Briscoe Protective Sys., Inc.

Wei-San Hsu v Briscoe Protective Sys., Inc. 2007 NY Slip Op 06671 [43 AD3d 916] September 11, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 7, 2007

Wei-San Hsu, Appellant,
v
Briscoe Protective Systems, Inc., et al., Respondents.

—[*1] Kurzman Karelsen & Frank, LLP, New York, N.Y. (Paul J. McGeough and Charles Palella of counsel), for appellant.

Epstein, Rayhill & Frankini, Woodbury, N.Y. (Mona C. Haas of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), entered June 29, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendants established, prima facie, their entitlement to judgment as a matter of law by tendering proof in admissible form that the plaintiff did not sustain a serious injury to her jaw within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact. Neither the plaintiff nor her examining dentist adequately explained the lengthy gap in the plaintiff's treatment between her termination of treatment two to three months post-accident and the evaluation by her examining dentist in October 2005 (see Pommells v Perez, 4 NY3d 566, 574 [2005]; Zinger v Zylberberg, 35 AD3d 851 [2006]; Hasner v Budnik, 35 AD3d 366 [2006]; Caracci v Miller, 34 AD3d 515 [2006]). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. Rivera, J.P., Spolzino, Fisher, Lifson and Dickerson, JJ., concur.