Graves v. Liu

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated April 13, 1999, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The defendants established a prima facie case that the plaintiffs injuries were not serious through the affirmed report of Dr. Harvey Grable, an orthopedic surgeon, whose examination failed to reveal any objective signs to confirm any of plaintiffs subjective complaints (see, Gaddy v Eyler, 79 NY2d 955). The affidavit by Dr. John Lancaster, a chiropractor, which the plaintiff submitted in opposition to the motion, failed to provide an adequate explanation for the approximately 22-month lag between the plaintiffs medical treatment in February 1997 and her subsequent visit to Dr. Lancaster in January 1999 (see, Marshall v Albano, 182 AD2d 614). In addition, Dr. Lancaster failed to set forth what objective tests he performed in arriving at the conclusions regarding alleged restrictions in the plaintiffs range of motion (see, Grossman v Wright, 268 AD2d 79; Smith v Askew, 264 AD2d 834). The plaintiff also failed to demonstrate that she suffered from a medically-determined injury which prevented her from performing substantially all of her customary and usual activities for at least 90 days during the 180 days immediately fol [441] lowing the accident (see, Insurance Law § 5102 [d]; Nunez v Dabrowski, 185 AD2d 269). Accordingly, the plaintiff failed to raise a triable issue of fact and the defendants are entered to summary judgment (see, CPLR 3212 [b]). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.