Upon the foregoing papers, defendant's motion (No. 2874) for summary judgment and dismissal of the complaint on the ground that neither plaintiff has sustained a "serious injury" as defined by Insurance Law §5102(d) is granted; the cross motion (No. 3011) is denied.

This personal injury action was instituted by plaintiffs to recover damages for injuries allegedly sustained in a motor vehicle accident which occurred on February 15, 2001.

In support of his motion for summary judgment pursuant to CPLR 3212 and Insurance Law §5104(a), defendant has submitted (1) the September 17, 2005 affirmed report of Stephen Lastig, M.D., a Board Certified Radiologist, and (2) the March 3, 2006 affirmed report of Robert Israel, M.D., a Board Certified Orthopedic Surgeon. Based on his review of the April 18, 2001 MRI of plaintiff Liang Yin's lumbar and cervical spine, Dr. Lastig stated that he was unable to identify any focal disc herniations or annular bulges in the lumbar spine, and that there was no evidence of central lumbar canal stenosis. However, he did find evidence of unrelated degenerative disc disease. Dr. Lastig also found multilevel degenerative disc disease with focal midline disc herniation at C5-C6 of the cervical spine, but concluded that the etiology of same could not be determined on the single study. Based on his May 2, 2006 physical examination, Dr. Israel found that Liang Yin exhibited normal range of motion in his cervical spine, wrists, lumbar spine, knees and ankles. He also found evidence of resolved sprains, but no evidence of any orthopedic disability (see Defendant's Exhibits "G", "H").

In support of his motion to dismiss the complaint of the co-plaintiff, Wei Quo Qui, defendant has annexed (1) the affirmed report of Jay Nathan M.D., an orthopedist (Defendant's Exhibit "I") (2) the affirmed report of Dr. Marlin Seliger, a Board Certified Neurologist (Defendant's Exhibit "J"), and (3) the affirmed report of Dr. Richard Heidin, a Board Certified Radiologist (Defendant's Exhibit "K"). Following an orthopedic examination of plaintiff Quo Qui on February 13, 2006, Dr. Nathan found normal ranges of motion of the shoulders, elbows, hands, hips, cervical and lumbar spines, and "no objective evidence of orthopedic disability" Based on his neurological examination of Quo Qui, Dr. Seliger found that while the co-plaintiff had suffered cervical and lumbo-sacral sprain, there was no evidence of neurological disability. [*2]Finally, based upon his independent examination of the April 2001 MRIs of Quo Qui's cervical and lumbar spine, Dr. Heiden concluded that each of this plaintiff's disc bulges and herniations were clearly degenerative in origin, and were in no way causally related to the accident of February 15, 2001.

On the basis of these five reports, defendant has made a prima facie showing that neither plaintiff had suffered any orthopedic or neurological disability as a result of the subject accident, and that neither had sustained a consequential or significant limitation in the use of a body organ, member, function or system as a consequence thereof (see Insurance Law §5102[d]).

It is well settled that once the moving party has made a prima facie showing of his or her entitlement to judgment as a matter of law, it is incumbent upon the opposing party to provide evidentiary proof in admissible form sufficient to raise a triable issue of fact in order to defeat summary judgment (see Rosenberg v. Rockville Centre Soccer Club, 166 AD2d 570).

In opposition to defendant's motion, each plaintiff has submitted, inter alia, a separate affirmed report by Dr. Nengjia Zhao, an internist, who states that he first examined plaintiff Liang Yin on February 17, 2001 and co-plaintiff Quo Qui on February 23, 2001. While Dr. Zhao opines that the limitations described in his report with respect to each plaintiff are "permanent in nature", the reports themselves appear to be based on plaintiffs' subjective complaints, and are devoid of any qualitative assessment of the injuries sustained by either plaintiff based upon competent, objective medical evidence (see Grossman v. Wright, 268 AD2d 79). These conclusory reports by plaintiffs' expert are insufficient to raise a triable issue of fact (see Toure v. Avis Rent A Car Sys, 98 NY2d 345).

Additionally, neither plaintiff has presented any evidence of treatment for their alleged injuries from 2001 until November of 2006 when, according to Dr. Zhao, they were examined "at the request of plaintiffs' counsel and in opposition to defendant's motion to dismiss the...complaint". Where, as here, there is lengthy gap in treatment, it must be adequately explained by the injured party in order to dispel the suggestion that the injury was slight or had resolved, and that no treatment was required (see Crespo v. Kramer, 295 AD2d 467). No such explanation has been attempted in this case (see Pommells v. Perez, 4 NY3d 566).

Finally, neither plaintiffs' opposing affidavits (see Plaintiffs' Exhibit "B") nor their deposition testimony (see Plaintiffs' Exhibits "F", "G") is sufficient to establish that either was prevented from performing substantially all of his customary daily activities under the 90/180 day category of serious injury.

Under these circumstances, the cross motion for partial summary judgment has been rendered academic.

Accordingly, it is hereby

ORDERED that defendant's motion for summary judgment is granted; and it is further [*3]

ORDERED that the complaint is dismissed in its entirety; and it is further

ORDERED that the cross motion is denied as academic; and it is further

ORDERED that the Clerk enter judgment accordingly.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify all parties of this Decision/Order.

DATED: MARCH 29, 2007/s/_____________________________________

HON. THOMAS P. ALIOTTA, J.S.C.

ASN BY EVE/pt on 3/29/07

HANKIN, HANDWERKER & MAZEL, PLLC

7 PENN PLAZA, SUITE 904

NEW YORK, NY 10001

CHEVEN, KEELY & HATZIS, ESQS.

40 WALL STREET, 15TH FL.

NEW YORK, NY 10005

KELLY, RODE & KELLY, LLP

ATT: SUSAN M. ULRICH, ESQ.

330 OLD COUNTRY ROAD, SUITE 305

MINEOLA, NY 11501