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Xiomara Sarita v. Mano Jimenez

New York Supreme and/or Appellate Courts Appellate Term, First Department


October 18, 2011

XIOMARA SARITA,
PLAINTIFF-RESPONDENT,
v.
MANO JIMENEZ, DEFENDANT, - AND - JOSE R. VALDEZ AND CARMEN MONCION,
DEFENDANTS-APPELLANTS.

Defendants Jose R. Valdez and Carmen Moncion appeal from an order of the Civil Court of the City of New York, Bronx County (Robert R. Reed, J.), dated July 19, 2010, which denied their motion for summary judgment dismissing the complaint.

Per curiam.

Sarita v Jimenez

2011 NY Slip Op 51893(U)

Decided on October 18, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ

Order (Robert R. Reed, J.), dated July 19, 2010, reversed, with $10 costs, defendants-appellants' motion for summary judgment dismissing the complaint granted, complaint dismissed as against them, and, upon a search of the record, as against defendant Mano Jimenez as well. The Clerk is directed to enter judgment accordingly.

Defendants-appellants established prima facie, through the submission of medical records and experts' affirmations, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the 2002 motor vehicle accident (see Barner v Shahid, 73 AD3d 593, 594 [2010]). In opposition, plaintiff failed to raise a triable issue. The record shows that plaintiff underwent only a handful of medical examinations and tests in the months following the accident. Conspicuously absent from plaintiff's submissions was any documentation of the physical therapy and chiropractic treatment she claims to have received (see Bent v Jackson, 15 AD3d 46, 48 [2005]). Significantly, plaintiff failed to adequately explain the three-week gap between the accident and commencement of treatment (see Pommells v Perez, 4 NY3d 566, 572 [2005]; see Henry v Peguero, 72 AD3d 600, 603, appeal dismissed 15 NY3d 820 [2010]), or the subsequent six-year cessation of treatment (see Barner v Shahid, 73 AD3d at 595; Cekic v Zapata, 69 AD3d 464 [2010]).

Upon a search of the record (see CPLR 3212[b]), we also grant summary judgment dismissing the complaint to the nonmoving defendant, Mano Jimenez, since plaintiff cannot meet the threshold for serious injury (see Santiago v Bhuiyan, 71 AD3d 485, 486 [2010]; Lopez v Simpson, 39 AD3d 420, 421 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: October 18, 2011

20111018

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