| Camacho v Dwelle |
| 2008 NY Slip Op 06789 [54 AD3d 706] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Edgar H. Camacho, Respondent, v John H. Dwelle, III, etal., Appellants. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for appellants Elmer Rivas and Norman Castro. William Pager, Brooklyn, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants Elmer Rivas andNorman Castro appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Harkavy, J.), dated October 25, 2007, as denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d),and the defendant John H. Dwelle, III separately appeals, as limited by his brief, from so much ofthe same order as denied his separate motion for the same relief.
Ordered that the order is reversed, on the law, with one bill of costs payable to the defendantsappearing separately and filing separate briefs, and the defendants' motions for summaryjudgment dismissing the complaint are granted.
The plaintiff was involved in a motor vehicle accident in November 2004 on theBrooklyn-Queens Expressway in Brooklyn. He subsequently instituted this action to recoverdamages for the resulting personal injuries.
After issue was joined, the defendants Elmer Rivas and Norman Castro moved for summaryjudgment, contending that the plaintiff did not sustain a serious injury within the meaning of[*2]Insurance Law § 5102 (d), and the defendant John H.Dwelle, III separately moved for the same relief, in reliance on the same medical evidencesubmitted by Rivas and Castro. The movants established, prima facie, that the plaintiff's injurieswere not serious through the affirmed medical report of a physician who examined him andconcluded that he had a normal neurological evaluation (see Toure v Avis Rent A Car Sys.,98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Contrary tothe plaintiff's contention, since he did not allege in his complaint or bill of particulars that heinjured his right shoulder in the subject motor vehicle accident, and did not move for leave toamend the bill of particulars to assert such an allegation, the defendants' physician was notrequired to examine that part of the plaintiff's body (see Sharma v Diaz, 48 AD3d 442 [2008]). Furthermore, bysubmitting the plaintiff's deposition testimony that he missed only 15 days of work as a result ofthe accident, the defendants demonstrated that the plaintiff was able to perform "substantially all"of the material acts constituting his customary daily activities for more than 90 days of the first180 days subsequent to the accident (Insurance Law § 5102 [d]; see Bartley v Trans Car & Limo, Inc.,41 AD3d 624 [2007]).
The only admissible medical evidence that the plaintiff submitted in opposition to theseparate motions, an affirmed report prepared by Dr. Mark Kostin, failed to raise a triable issueof fact (see CPLR 3212 [b]). As Dr. Kostin did not examine the plaintiff until almostthree years after the accident, neither he nor the plaintiff proffered competent medical evidenceof initial range-of-motion restrictions contemporaneous with the accident (see Lea v Cucuzza, 43 AD3d 882[2007]). In addition, the plaintiff could not rely upon the unsworn, unaffirmed medical reportscited by Dr. Kostin in his affirmed report (see Friedman v U-Haul Truck Rental, 216AD2d 266 [1995]).
Accordingly, the Supreme Court should have granted the defendants' motions for summaryjudgment dismissing the complaint. Florio, J.P., Angiolillo, McCarthy and Dickerson, JJ.,concur.