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Dilone v. Cheng

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 25, 2008

YVONNE DILONE, PLAINTIFF-APPELLANT,
v.
TAK LEU CHENG, DEFENDANT-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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Nardelli, Buckley, Freedman, JJ.

21398/05

Defendants' 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 defendants' 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 Pommels 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]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081125

© 1992-2008 VersusLaw Inc.



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