| Coburn v Samuel |
| 2007 NY Slip Op 07649 [44 AD3d 698] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Patricia Coburn, Respondent, v Roxene Samuel, Appellant,et al., Defendants. |
—[*1] Weitz, Kleinick & Weitz (Pollack, Pollack, Isaac & DeCicco [Brian J. Isaac and Diane K.Toner] of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendant RoxeneSamuel appeals, as limited by her brief, from so much of an order of the Supreme Court, QueensCounty (Durante, J.), entered January 7, 2003, as denied her motion for summary judgmentdismissing the plaintiff's cause of action to recover damages for personal injuries insofar asasserted against her on the ground that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
While we affirm the Supreme Court's order, we do so on grounds other than those reliedupon by the Supreme Court. The defendant Roxene Samuel (hereinafter the defendant) failed tomake a prima facie showing that the plaintiff did not sustain a serious injury within the meaningof Insurance Law § 5102 (d) as a result of the subject accident. The defendant did notaddress the plaintiff's claim that she sustained a medically-determined injury or impairment of anonpermanent nature which prevented her from performing substantially all of the material actswhich constituted her usual and customary daily activities for not less than 90 days during the180 days immediately following the accident. None of the defendant's experts related theirfindings to this category of serious injury for the period of time immediately following theaccident (see Torres v PerformanceAuto. Group, Inc., 36 AD3d 894 [2007]; Talabi v Diallo, 32 AD3d 1014 [2006]; Sayers v Hot, 23 AD3d 453[2005]).[*2]
Additionally, the defendant relied upon a medical reportwhich failed to specify range of motion limitations in the plaintiff's cervical and lumbar spine,and two medical reports which failed to quantify those limitations (see Dzaferovic v Polonia, 36 AD3d652 [2007]; Whittaker v WebsterTrucking Corp., 33 AD3d 613 [2006]; Kaminsky v Waldner, 19 AD3d 370 [2005]). Medical reportssubmitted by the defendant failed to set forth what objective testing was done to support a claimof full range of motion in the plaintiff's neck and lower torso (see Cedillo v Rivera, 39 AD3d 453 [2007]; McLaughlin v Rizzo, 38 AD3d856 [2007]) and other reports failed to compare those findings to what is normal (see McNulty v Buglino, 40 AD3d591 [2007]; Harman v Busch,37 AD3d 537 [2007]). The report of the chiropractor who examined the plaintiff at therequest of her no-fault carrier did not provide any support for the defendant's motion. That reportwas not in affidavit form and therefore did not constitute competent evidence (see CPLR2106; Kunz v Gleeson, 9 AD3d480 [2004]; Santoro v Daniel, 276 AD2d 478 [2000]).
Under these circumstances, it is not necessary to consider whether the plaintiff's paperssubmitted in opposition were sufficient to raise a triable issue of fact (see Whittaker v Webster TruckingCorp., 33 AD3d 613 [2006]; Coscia v 938 Trading Corp., 283 AD2d 538[2001]). Schmidt, J.P., Krausman, Goldstein, Covello and Angiolillo, JJ., concur.