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Nicole Washington and Douglas Washington v. Sang Hyun Cho and Kyu Y. Cho

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


May 23, 2011

NICOLE WASHINGTON AND DOUGLAS WASHINGTON,
RESPONDENTS,
v.
SANG HYUN CHO AND KYU Y. CHO,
APPELLANTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered May 10, 2010.

Washington v Sang Hyun Cho

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2011

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The order denied defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendants' motion for summary judgment dismissing the complaint is granted.

In this action to recover for serious injuries allegedly sustained in a motor vehicle accident, defendants moved for summary judgment dismissing the complaint on the ground that plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court denied the motion.

Defendants met their prima facie burden of showing that plaintiffs 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 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition to the motion, plaintiffs failed to raise a triable issue of fact. Plaintiffs failed to proffer competent medical evidence demonstrating the existence of significant limitations of their ranges of motion that were contemporaneous with the subject accident (see Husbands v Levine, 79 AD3d 1098 [2010]; Resek v Morreale, 74 AD3d 1043 [2010]; Taylor v Flaherty, 65 AD3d 1328 [2009]). Plaintiffs' only medical report which set forth results of range of motion tests performed on them shortly after the accident was inadmissible since it was unaffirmed (see Grasso v Angerami, 79 NY2d 813 [1991]; Varveris v Franco, 71 AD3d 1128 [2010]). Furthermore, plaintiffs failed to proffer competent medical evidence that they sustained medically determined injuries of a nonpermanent nature which prevented them from performing their usual and customary activities for 90 of the first 180 days following the subject accident (see Baena v Almonte, 74 AD3d 1262 [2010]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).

Accordingly, the order is reversed and defendants' motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: May 23, 2011

20110523

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