| Cartha v Quinn |
| 2008 NY Slip Op 03714 [50 AD3d 530] |
| April 24, 2008 |
| Appellate Division, First Department |
| Fred L. Cartha, Respondent, v Omar Quinn et al.,Appellants, et al., Defendant. |
—[*1] Finkelstein & Partners, LLP, Newburgh (Kristine M. Cahill of counsel), forrespondent.
Order, Supreme Court, Bronx County (George D. Salerno, J.), entered November 1, 2007,which denied defendants-appellants' motion for summary judgment dismissing the complaint forlack of a serious injury as required by Insurance Law § 5102 (d), unanimously reversed, onthe law, without costs, and the motion granted. Upon a search of the record, the Clerk is directedto enter judgment dismissing the complaint in its entirety.
Plaintiff's medical reports, while indicating disc and elbow injuries, do not correlate therange-of-motion measurements therein to a norm, or otherwise show how the alleged injuries toplaintiff's back and arm resulted in significant limitations in their use, and thus fail to rebutdefendants' prima facie showing that plaintiff did not suffer any permanent or significant injuriesas a result of the accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351[2002]). Although plaintiff's elbow required surgery, which was performed eight months after theaccident, and he apparently missed work as a result, the record establishes that the condition wascorrected by the surgery (see Baker vThorpe, 43 AD3d 535 [2007]). Nor does plaintiff adduce evidence of any substantialinterference with his usual and customary daily activities for 90 of the first 180 days followingthe accident. He returned to work immediately after the accident, and his surgery, followed by hisabsence from work, did not fall within the 90/180 time frame. Even if they had beensubstantiated, neither plaintiff's claim of a reduced work schedule following the accident (see Lopez v Simpson, 39 AD3d420 [2007]), nor the minor curtailment of his usual [*2]activities during the 90/180 time frame (see Blackmon v Dinstuhl, 27 AD3d241 [2006]), would satisfy the statute. Concur—Tom, J.P., Mazzarelli, Williams andSweeny, JJ.