| Lea v Cucuzza |
| 2007 NY Slip Op 06645 [43 AD3d 882] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Antonette Lea, Appellant, v Geraldine Cucuzza et al.,Respondents. |
—[*1] Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (Claudine Weis ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Rockland County (Weiner, J.), dated June 27, 2006, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants established prima facie that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeToure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]). Any restrictions in the plaintiff's range of motion were attributed by thedefendants' examining neurologist to preexisting degenerative changes noted on radiologic films,and were not causally related to the subject accident (see Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005];Kearse v New York City Tr. Auth.,16 AD3d 45, 49 [2005]; McNeil vDixon, 9 AD3d 481, 482 [2004]).
In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]; Cohen v A One Prods., Inc., 34 AD3d 517 [2006]). The plaintiff'sorthopedist did not examine the plaintiff for the first time until more than four years after the[*2]accident, so that neither he nor the plaintiff profferedcompetent medical evidence of initial range of motion restrictions contemporaneous with theaccident (see Borgella v D & L TaxiCorp., 38 AD3d 701 [2007]; Iusmen v Konopka, 38 AD3d 608, 609 [2007]; Earl v Chapple, 37 AD3d 520, 521[2007]). Were the report of the defendants' ear, nose, and throat physician proffered by theplaintiff in opposition to the motion for summary judgment admissible (accord Positko v Krawiec, 6 AD3d517, 518 [2004]; Mantila v Luca, 298 AD2d 505 [2002]; Pagano vKingsbury, 182 AD2d 268, 271 [1992]), it would be insufficient to defeat the motion as itsconclusions were equivocal (see Matter of Milea v Easy Appliances Div., Murray Corp.,29 AD2d 730, 731 [1968]; Duffen v State of New York, 245 AD2d 653, 654 [1997]) andthe report failed to qualitatively assess how the plaintiff's alleged exacerbated vertigo comparedto the degree of vertigo experienced prior to the accident (see Creech v Walker, 11 AD3d 856, 857 [2004]; Suarez v Abe, 4 AD3d 288, 289[2004]).
The plaintiff's remaining contentions are without merit. Crane, J.P., Santucci, Florio, Dillonand Balkin, JJ., concur.