| Batts v Medical Express Ambulance Corp. |
| 2008 NY Slip Op 01999 [49 AD3d 294] |
| March 6, 2008 |
| Appellate Division, First Department |
| Shanda Batts, Appellant, v Medical Express AmbulanceCorp. et al., Respondents. |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York City (Kisha V.Augustin of counsel), for respondents.
Order, Supreme Court, Bronx County (George D. Salerno, J.), entered April 3, 2007, whichgranted defendants' motion for summary judgment dismissing the complaint on the ground thatplaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d),unanimously affirmed, without costs.
Defendants satisfied their burden of establishing prima facie entitlement to summaryjudgment on plaintiff's claims of permanent and significant limitations by submitting theaffirmation of their expert orthopedist. Although defendants initially submitted the affirmationunsigned, the court properly permitted them to serve a signed, otherwise identical, copy of theaffirmation with their reply papers, which caused no prejudice to plaintiff (see Aguilar vN.Y.C. Water Works, 298 AD2d 245 [2002]; DiLeo v Blumberg, 250 AD2d 364,365 [1998]).
Plaintiff's unsworn MRI report noting a disc herniation at L5-S1 was admissible, as it wascited in the affirmations of both plaintiff's and defendants' medical experts (see Pommells v Perez, 4 NY3d566, 577 n 5 [2005]). However, in the absence of additional objective medical evidence ofattendant significant physical limitations, it failed to establish an issue of fact (see Lloyd v Green, 45 AD3d 373,374 [2007]). The finding of a limited range of motion in plaintiff's lumbar spine was not made asa result of a medical examination until nearly 15 months after the accident and is too remote toraise a triable issue as to causation (seeLopez v Simpson, 39 AD3d 420, 421 [2007]; Lloyd at 374). Moreover, plaintiffoffered no expert assessments, either quantitative or qualitative, of the condition of his cervicalspine and left shoulder (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351[2002]).
Defendants' objective medical evidence indicating that plaintiff did not suffer disablinginjuries as a result of the accident established their prima facie entitlement to summary judgmenton plaintiff's claim that he experienced substantial curtailment of his daily activities for 90 of thefirst 180 days following the accident (see Lloyd, 45 AD3d at 373-374; Lopez, 39AD3d at 421). In opposition, plaintiff failed to raise a triable issue of fact in the form ofcompetent objective evidence [*2]substantiating his 90/180-dayclaim (see Ortega v Maldonado, 38AD3d 388 [2007]). Concur—Mazzarelli, J.P., Saxe, Gonzalez and Acosta, JJ.