| Medina v Medina |
| 2008 NY Slip Op 02034 [49 AD3d 335] |
| March 11, 2008 |
| Appellate Division, First Department |
| Viviana Medina et al., Plaintiffs, and Iris Dedos,Appellant, v Crecencio Medina, Defendant, and James M. Gutierrez,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York City (Stacy R. Seldin of counsel),for respondent.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered December 14, 2006,which, insofar as appealed from, granted defendant-respondent's motion for summary judgmentdismissing the complaint as to plaintiff-appellant for lack of a serious injury as required byInsurance Law § 5102 (d), unanimously affirmed, without costs.
There is no merit to plaintiff's argument that defendant's prima facie showing was rendereddeficient by his physician's acknowledgment that a bulging disc was revealed by the MRI ofplaintiff's lumbar spine taken shortly after the accident (see Lloyd v Green, 45 AD3d 373 [2007]; Kearse v New York City Tr. Auth., 16AD3d 45, 49-50 [2005]). In opposition, plaintiff adduced no medical evidence ofimpingement or other neurologic deficits that could be attributed to a bulging disc, and theobjectively tested range of motion limitations noted in plaintiff's lumbar spine, as well as hercervical spine, left knee and shoulder, were not assessed until nearly five years after the accident,too remote to raise an issue of fact as to whether the restrictions were caused by the accident (see Lopez v Simpson, 39 AD3d420 [2007]). The excerpts from an arthoscopic operative report on plaintiff's left knee,included in plaintiff's bill of particulars, indicates only a partial tear of the anterior cruciateligament, and there is no evidence that [*2]surgical repair of theknee was performed. We have considered plaintiff's 90/180-day claim and find that it too lacksmerit. Concur—Mazzarelli, J.P., Saxe, Friedman and Nardelli, JJ.