That leaves the ninth and final category with which to sustain her claim for serious injury: a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute their usual and customary daily activities for not less than 90 days during the 180 days immediately following occurrence of the injury or impairment. In order to prosecute a claim for serious injury pursuant to this category under Insurance Law § 5102(d), Plaintiff is required to show something more than slight curtailment of the material acts which constitute their usual and customary daily activities, and must support that claim with medical proof attributing such impairment to a medically determined injury.
Plaintiff must demonstrate that the motor vehicle accident prevented her from performing a substantial part of her usual and customary daily routine for 90 out of the 180 days immediately following the accident. Furthermore, in order to sustain a claim for serious injury, Plaintiff is required to establish “competent proof connecting the condition to the accident”
As pointed out by counsel for defendants, Plaintiff presented for an independent orthopedic medical examination, she reported to said doctor that she did not seek emergency room treatment following the accident and that she was unemployed at the time of said accident. The examining physician concluded: the diagnosis was consistent with resolved cervical and lumbar sprain; not physical therapy or orthopedic treatment was reasonable, related or necessary; there is no objective evidence to indicate the need for diagnostic testing, household help, durable medical equipment, surgery or special transportation; she possesses no orthopedic disability and is capable of gainful employment.
In response, Plaintiff offers no medical rebuttal. As Counsel for Defendants points out, in the specific context of a Motion for Summary Judgment on the issue of “serious injury” threshold, the opponent of the Motion must establish, through competent and probative medical evidence, a prima facie case that she maintained a “serious injury” Therefore, Summary Judgment must be granted to Defendants against Plaintiff, and the Complaint herein must be dismissed in its entirety.
For all the reasons stated herein above and in the totality of the papers submitted herein, the court:
ORDERED, that the application of Defendants for an Order:
1. Precluding Plaintiff from offering testimony at trial of this action, and dismissing his Complaint in its entirety; and
2. Granting Summary Judgment dismissing Plaintiff’s Complaint as against Defendants because she has not sustained a “serious injury’ as required by Insurance Law §§ 5102 and 5104; and 3. Dismissing the Cross-Claim as against said Defendants; is hereby granted in all respects, the Complaint herein is dismissed, and the action is disposed of.