Euvino v. Rauchbauer
| Decision Date | 16 March 2010 |
| Citation | 897 N.Y.S.2d 196,71 A.D.3d 820 |
| Parties | Diane EUVINO, appellant, v. Joseph RAUCHBAUER, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for appellant.
Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina and Andrea M. Alonso of counsel), for respondents.
MARK C. DILLON, J.P., HOWARD MILLER, RUTH C. BALKIN, JOHN M. LEVENTHAL, and LEONARD B. AUSTIN, JJ.
[897 N.Y.S.2d 197, 71 A.D.3d 820]
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), entered May 28, 2009, as granted that branch of the defendants' motion which was for summary judgment dismissing the first cause of action to recover damages for personal injuries on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants established, prima facie, through the affirmed reports of their expert neurologist and orthopedist, as well as the plaintiff's deposition testimony, 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 N.Y.2d 345, 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176; Richards v. Tyson, 64 A.D.3d 760, 761, 883 N.Y.S.2d 575; Berson v. Rosada Cab Corp., 62 A.D.3d 636, 637, 878 N.Y.S.2d 189; Byrd v. J.R.R. Limo, 61 A.D.3d 801, 802, 878 N.Y.S.2d 95). In opposition, the plaintiff's submissions were insufficient to raise a triable issue of fact as to whether she sustained a serious injury.
The plaintiff submitted affirmations from four physicians, none of whom saw the plaintiff during the first year after the accident. The plaintiff did not provide any affirmations from any of the physicians who had treated her in the months immediately following the accident, nor did she submit any medical records from that time period, although they were available from her initial treating physician's office after he died and physicians from his practice continued to treat her. She therefore failed to set forth any evidence that she suffered from any injuries contemporaneous with the accident ( see Collado v. Satellite Solutions & Electronics of WNY, LLC, 56 A.D.3d 411, 868 N.Y.S.2d 74; Kurin v. Zyuz, 54 A.D.3d 902, 903, 864 N.Y.S.2d 151; Perdomo v. Scott, 50...
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