| DeLeon v Ross |
| 2007 NY Slip Op 08001 [44 AD3d 545] |
| October 25, 2007 |
| Appellate Division, First Department |
| Angel DeLeon, Appellant, v Rodney Montgomery Ross,Sr., et al., Respondents. |
—[*1] Molod Spitz & DeSantis, P.C., New York City (Marcy Sonneborn of counsel), forrespondents.
Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered July 19, 2006, whichgranted defendant's motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Defendants satisfied their burden of establishing prima facie that plaintiff in this motorvehicle accident case had not sustained a "significant impairment" under Insurance Law §5102 (d), submitting an affidavit and reports from Dr. Crane that concluded there was "noobjective evidence of any orthopedic residuals related to the accident of 4/4/03" (see Perez v Hilarion, 36 AD3d 536[2007]). Plaintiff counters that Dr. Crane's affirmation is deficient, as it failed to showrange-of-motion tests that are compared to "the norm." In addition to being improperly raised forthe first time on appeal (see Vasquez vReluzco, 28 AD3d 365 [2006]), plaintiff's argument is unavailing since an expert'squalitative assessment of a patient's condition may suffice, "provided that the evaluation has anobjective basis and compares the plaintiff's limitations to the normal function, purpose and use ofthe affected body organ, member, function or system" (Toure v Avis Rent A Car Sys., 98NY2d 345, 350 [2002]). Dr. Crane's report did provide such an objective assessment, clearlycomparing plaintiff's diminished range of motion in his right shoulder to the norm. It alsoprovided an objective assessment of plaintiff's diminished range of motion in his cervical andlumbar spine.
The report by plaintiff's expert, Dr. Haque, noted the degenerative conditions identified onplaintiff's October 27, 2003 MRI, yet failed to explain his current findings in light of medicalevidence that suggests preexisting degenerative conditions (see Shinn v Catanzaro, 1 AD3d 195, 197 [2003]).
Moreover, plaintiff's so-called gap in treatment was, in reality, a cessation of all treatment.While a cessation of treatment is not dispositive, a plaintiff who terminates therapeutic measuresfollowing the accident, while claiming "serious injury," must offer some reasonable explanationfor having done so (Pommells vPerez, 4 NY3d 566, 574 [2005]). Here, there was an undisputed, 20-month gap beforeplaintiff's last examination, beginning 17 months after the accident and continuing until thesubmission of defendants' motion for summary judgment. By way of explanation, plaintiff offersonly the irrelevant claim, unsupported by any documentation from defendants' insurance carrier,that he failed to appear at an independent [*2]medicalexamination scheduled by defendants' insurance carrier because he forgot the date, and was notgiven an opportunity for a makeup.
Without more, plaintiff's affidavit, stating that he is unable to teach kickboxing or playracquetball or handball, must be viewed as insufficient to establish a serious injury within themeaning of the statute (see Gjelaj v Ludde, 281 AD2d 211, 212 [2001]).Concur—Mazzarelli, J.P., Marlow, Sullivan, Gonzalez and McGuire, JJ.