| Morris v Edmond |
| 2008 NY Slip Op 01122 [48 AD3d 432] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Charmain Morris, Respondent, v Reynaldo Edmond,Defendant, and Tehal Singh, Appellant. |
—[*1] Albert Zafonte, Jr. (Richard Paul Stone, New York, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Tehal Singh appealsfrom an order of the Supreme Court, Kings County (Bunyan, J.), dated May 23, 2007, whichdenied his motion for summary judgment dismissing the complaint insofar as asserted againsthim on the ground that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, the appellant's motion for summaryjudgment dismissing the complaint insofar as asserted against him is granted and, upon searchingthe record, summary judgment is awarded to the defendant Reynaldo Edmond dismissing thecomplaint insofar as asserted against him.
Contrary to the Supreme Court's determination, the appellant made a prima facie showingthrough the respondent's deposition testimony and the affirmed medical reports of the appellant'sexamining neurologist and orthopedic surgeon that the respondent 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[1992]; Kearse v New York City Tr.Auth., 16 AD3d 45, 51-52 [2005]). At her deposition, the respondent stated that, atmost, she missed a week or two of college as a result of the subject accident. The appellant'sexamining orthopedic surgeon concluded, based upon objective range of motion tests, that therespondent had full range of motion in her cervical spine, lumbar spine, and left knee. Theappellant's examining neurologist also concluded, based upon objective range of motion tests,that the respondent had full range of motion in her cervical spine, and found an insignificantlimitation in lumbar flexion only.[*2]
In opposition, the respondent failed to raise a triable issueof fact. Nunzio Saulle, one of the respondent's treating physicians, examined her for the first timeon April 5, 2006, two years and five months after the accident, and on two subsequent dates, thelatest on February 15, 2007. While Saulle found significant limitations in the respondent's rangeof motion, such findings were not contemporaneous with the subject accident (see D'Onofrio v Floton, Inc., 45 AD3d525 [2007]; Morales v Daves,43 AD3d 1118 [2007]; Rodriguez v Cesar, 40 AD3d 731 [2007]). Similarly, SebastianLattuga, another of the respondent's treating physicians, did not examine her until June 11, 2004,seven months after the accident. Moreover, while Lattuga set forth certain restricted ranges ofmotion, he failed to compare his findings to normal ranges of motion (see Umar v Ohrnberger, 46 AD3d543 [2007]; Sullivan v Dawes,28 AD3d 472 [2006]) or to state that any of the limitations noted were the result ofinjuries sustained in the subject accident (see Itskovich v Lichenstadter, 2 AD3d 406, 407 [2003]).
Further, although the respondent's magnetic resonance imaging reports showed bulging discsin the cervical and lumbar spine, and joint effusion in the left knee, there were no opinionscontained therein as to causation nor objective evidence of the extent and duration of the allegedphysical limitations resulting therefrom (see Mejia v DeRose, 35 AD3d 407, 407-408 [2006]; Yakubov v CG Trans Corp., 30 AD3d509, 510 [2006]; Cerisier v Thibiu,29 AD3d 507, 508 [2006]; Bravo v Rehman, 28 AD3d 694, 695 [2006]; Kearse v NewYork City Tr. Auth., 16 AD3d at 50; Collins v Stone, 8 AD3d 321, 322-323 [2004]). The respondentalso failed to proffer competent medical evidence that she sustained a medically-determinedinjury of a nonpermanent nature which prevented her, for 90 of the 180 days following thesubject accident, from performing her usual and customary activities (see Sainte-Aime v Ho,274 AD2d 569, 570 [2000]).
Based on the foregoing, we search the record pursuant to CPLR 3212 (b) and award thenonmoving defendant, Reynaldo Edmond, summary judgment dismissing the complaint insofaras asserted against him on the ground that the respondent did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeDunham v Hilco Constr. Co., 89 NY2d 425, 430 [1996]; Merritt Hill Vineyards v WindyHgts. Vineyard, 61 NY2d 106, 110-111 [1984]; Wilson v Buffa, 294 AD2d 357, 358[2002]). Spolzino, J.P., Skelos, Lifson and McCarthy, JJ., concur.