| Young Hwan Park v Orellana |
| 2008 NY Slip Op 02580 [49 AD3d 721] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Young Hwan Park, Respondent, v Martin Orellana,Appellant. |
—[*1] Bloom & Noll, LLP, Mineola, N.Y. (Richard E. Noll of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Queens County (Grays, J.), entered June 18, 2007, which denied his motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The defendant made a prima facie showing that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident, bysubmitting the affirmed medical report of his examining physician and copies of the plaintiff'sdeposition testimony (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Moore v Edison, 25 AD3d 672 [2006]).
In opposition, the evidence submitted by the plaintiff failed to raise a triable issue of fact asto whether he sustained a serious injury in the nature of a significant and/or a permanentconsequential limitation of use to his cervical spine or left shoulder as a result of the subjectaccident. While the plaintiff's treating chiropractor opined in his affidavit that the plaintiffsustained permanent injuries and limitations to, among other things, his cervical spine as a resultof the subject accident, this opinion was not based on a recent examination of the plaintiff (see Amato v Fast [*2]Repair Inc., 42 AD3d 477, 478 [2007]; Ali v Mirshah, 41 AD3d 748, 749[2007]; Elgendy v Nieradko, 307 AD2d 251 [2003]).
Additionally, although we note that the defendant failed to raise in the Supreme Court hisargument that the affirmation of the plaintiff's physician in Maryland did not constitutecompetent evidence because she was not "authorized by law to practice in the state" (CPLR2106; see Moore v Edison, 25AD3d 672 [2006]; Palo v Latt, 270 AD2d 323 [2000]), even if we were to considerthat affirmation, it did not raise a triable issue of fact, because the plaintiff's Maryland physicianfailed to set forth the objective tests she relied upon in arriving at her conclusions (see Murray v Hartford, 23 AD3d629 [2005]; Nozine v Sav-On CarRentals, 15 AD3d 555, 556 [2005]; Bailey v Ichtchenko, 11 AD3d 419, 420 [2004]). Spolzino, J.P.,Santucci, Dillon and Balkin, JJ., concur.