| Eichinger v Jone Cab Corp. |
| 2008 NY Slip Op 07748 [55 AD3d 364] |
| October 14, 2008 |
| Appellate Division, First Department |
| Jaime Eichinger, Respondent-Appellant, v Jone Cab Corp.et al., Defendants, and Ivan Holding Corp. et al.,Appellants-Respondents. |
—[*1] Law Offices of Stephen H. Frankel, Mineola (Nicholas E. Tzaneteas of counsel), forrespondent-appellant.
Order, Supreme Court, Bronx County (Alan Saks, J.), entered on or about March 17, 2008,which denied so much of defendants' motion for summary judgment dismissing the complaint asto the allegation of serious injury regarding lumbar spine bulges atL4-L5, and granted the motion with respect to all other allegations, unanimously modified, on thelaw, without costs, the motion granted in its entirety, and the complaint dismissed. The Clerk isdirected to enter judgment accordingly.
Defendants made a prima facie showing, based on the quantified findings in the examinationreports of their orthopedic surgeon and neurologist, that plaintiff had a full range of motion in herlumbar spine (see e.g. Style v Joseph, 32 AD3d 212, 214 [2006]). Related tests by theseexperts revealed no motor or gait deficiencies, leading to the conclusion that plaintiff was notdisabled. In opposition, plaintiff's proof failed to raise a triable issue as to serious injury of thelumbar spine. The minimal lumbar range-of-motion deficits noted by plaintiff's neurologist, Dr.Hausknecht, contradicted by the results of other tests he conducted (including a negative resulton a seated straight-leg-raising test), indicated no serious injury to the lumbar spine.
The 14-month gap in treatment underscores the lack of evidence of serious injury toplaintiff's lumbar spine (see generally Pommells v Perez, 4 NY3d 566, 574 [2005]). Dr.Hausknecht's conclusory opinion that plaintiff had received "an adequate course of rehabilitation"and attained "maximal medical improvement" was insufficient, under the circumstances, toexplain this gap.
Plaintiff's experts failed to address the opinion of defendants' radiologist that the cervicalcondition was degenerative in origin due to dessication of the discs, thus negating any triableissue of fact as to serious injury regarding the cervical complaint (id. at 579-580).Plaintiff's evidence also failed to establish a medically substantiated, nonpermanent impairmentsatisfying the 90-out-of-180-day aspect of the claim[*2](see Insurance Law § 5102 [d]; Johnson vMarriott Mgt. Servs. Corp., 44 AD3d 450 [2007], lv denied 10 NY3d 716 [2008]).Concur—Mazzarelli, J.P., Friedman, Nardelli, Williams and Freedman, JJ.