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Menaker v. White Express Cab Corp.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 22, 2009

MARYBETH MENAKER, APPELLANT,
v.
WHITE EXPRESS CAB CORP., ET AL., RESPONDENTS.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Starkey, J.), dated July 1, 2008, which granted the motion of the defendants White Express Cab Corp. and Shuminov Elkhan, and the separate motion of the defendant Francisco Lopez, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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.

PETER B. SKELOS, J.P., ANITA R. FLORIO, RUTH C. BALKIN, ARIEL E. BELEN and LEONARD B. AUSTIN, JJ.

(Index No. 4970/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The respective defendants, in support of their motions for summary judgment, relied on the same submissions. Those submissions were sufficient to meet their prima facie burdens of showing that the plaintiff did not sustain a serious injury 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; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.

While the plaintiff relied on the affirmation of her treating neurologist, in which he revealed that the plaintiff had significant limitations in her cervical and lumbar spine two years post-accident, as well as more recently, neither he nor the plaintiff proffered competent medical evidence of significant limitations in either her cervical or lumbar regions that were contemporaneous with the subject accident (see Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Serv., 49 AD3d 498).

Finally, the plaintiff failed to set forth any competent medical evidence to establish that she sustained a medically-determined injury of a nonpermanent nature which prevented her from performing her usual and customary activities for 90 of the 180 days following the subject accident (see Sainte-Aime v Ho, 274 AD2d 569).

SKELOS, J.P., FLORIO, BALKIN, BELEN and AUSTIN, JJ., concur.

20091222

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