| Gould v Ombrellino |
| 2008 NY Slip Op 09749 [57 AD3d 608] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mDaniel Gould, Appellant, v Concetta Ombrellino,Respondent. |
—[*1] Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Robert Yodowitz of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief,from so much of an order of the Supreme Court, Queens County (Nelson, J.), entered July 3, 2007, asgranted those branches of the defendant's motion which were for summary judgment dismissing somuch of the plaintiff's complaint as alleged that she sustained a serious injury under the fracture,permanent consequential limitation of use, and/or significant limitation of use categories of InsuranceLaw § 5102 (d) as a result of the subject accident.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's motion which was for summary judgment dismissing so much of the plaintiff'scomplaint as alleged a serious injury under the fracture category of Insurance Law § 5102 (d),and substituting therefor a provision denying that branch of the defendant's motion; as so modified, theorder is affirmed insofar as appealed from, with costs to the plaintiff.
The Supreme Court correctly determined that the defendant met her prima facie burden of showingthat the plaintiff did not sustain a serious injury under the fracture, permanent consequential limitation ofuse, and/or significant limitation of use categories of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955 [1992]). Contrary to the determination of the Supreme Court, in opposition,the plaintiff raised a triable issue of fact as to whether he sustained a serious injury under the fracturecategory of [*2]Insurance Law § 5102 (d) as a result of thesubject accident. The plaintiff relied upon, inter alia, the affirmation of his treating physician, Dr. GraciaMayard. In that affirmation, Dr. Mayard diagnosed the plaintiff with a fracture of his left ninth rib as aresult of the subject accident. That diagnosis was based on Dr. Mayard's review of the properlysubmitted medical records/reports of the plaintiff, which revealed the existence of a fracture of his leftninth rib, as well as Dr. Mayard's examinations of the plaintiff.
Contrary to the plaintiff's arguments on appeal, the affirmation of Dr. Mayard did not raise a triableissue of fact as to whether he sustained a serious injury under the permanent consequential limitation ofuse or the significant limitation of use categories of Insurance Law § 5102 (d). While Dr. Mayardset forth range of motion test results which were based on a recent examination of the plaintiff thatrevealed the existence of significant limitations in the plaintiff's lumbar spine, the plaintiff did not proffercompetent medical evidence that showed the existence of similar range of motion limitations in theplaintiff's lumbar spine that were contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563[2008]; Ferraro v Ridge Car Serv., 49AD3d 498 [2008]; D'Onofrio v Floton,Inc., 45 AD3d 525 [2007]). Spolzino, J.P., Santucci, Miller, Dickerson and Eng, JJ., concur.