| Taylor v Vasquez |
| 2009 NY Slip Op 00010 [58 AD3d 406] |
| January 6, 2009 |
| Appellate Division, First Department |
| William Taylor, Respondent, v Miguel A. Vasquez,Appellant, and Calvin Osborne, Respondent. |
—[*1]
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about May 13,2008, which denied defendants' motion for summary judgment dismissing the complaint for lackof a serious injury as required by Insurance Law § 5102 (d), unanimously reversed, on thelaw, without costs, the motion granted and the complaint dismissed. The Clerk is directed toenter judgment accordingly.
Defendants' medical submissions in support of their motion for summary judgment did notaddress plaintiff's medical condition during the 180 days following the accident. However,plaintiff's deposition testimony that he was confined to home and bed for just one or two weeksfollowing the accident is an admission that defeats his claim that he suffered an impairment thatsubstantially interfered with his usual and customary daily activities for 90 of the first 180 daysfollowing the accident (see Prestol vMcKissock, 50 AD3d 600 [2008]; Cartha v Quinn, 50 AD3d 530 [2008], lv denied 11 NY3d704 [2008]). This claim is also defeated by reports prepared by medical providers who found thatplaintiff was able to carry out normal activities of daily living two months after the accident.
As for plaintiff's claim that he suffered a permanent or significant limitation of use of hislumbar spine, defendants met their initial burden of demonstrating the absence of such limitationby submitting the affirmed medical report of a neurologist that describes the tests he performedsupporting his finding that plaintiff had full range of motion in the cervical and lumbar spine,and his conclusion that plaintiff had recovered from the sprain/strain-type injury to the lumbarspine suffered as a result of the accident (see Nagbe v Minigreen Hacking Group, 22 AD3d 326 [2005]).Defendants also submitted an affirmed report of a radiologist who, upon review of the MRItaken a month after the accident, found no evidence of herniation or bulge, but identified a "bonyovergrowth" at the L4-L5 intervertebral disc level that, she opined, could not have occurred inless than six months time, had no traumatic basis and was degenerative in origin. In opposition,plaintiff submitted a medical affirmation that, while asserting that plaintiff had a 20% loss ofrange of motion, was deficient since it failed to specify what objective tests, if any, were [*2]performed to arrive at that measurement, or what the normal rangeof motion should be (see Taylor vTerrigno, 27 AD3d 316 [2006]; Vasquez v Reluzco, 28 AD3d 365 [2006]). Nor did plaintiffpresent any evidence rebutting the opinion of defendants' radiologist that the growth shown onthe MRI was a degenerative condition that had developed over time (see Pommells v Perez, 4 NY3d566, 579-580 [2005]). Also fatal to plaintiff's claim is the failure to explain his cessation oftreatment after five months of physical therapy, acupuncture and chiropractic care (see id.at 574; Vasquez v Reluzco, supra).
Although appellant's codefendant did not file a notice of appeal from the denial of themotion for summary judgment, summary judgment should be granted in his favor as well"because, obviously, if plaintiff cannot meet the threshold for serious injury against onedefendant, [he] cannot meet it against the other" (Lopez v Simpson, 39 AD3d 420, 421 [2007]).Concur—Lippman, P.J., Mazzarelli, Sweeny, DeGrasse and Freedman, JJ.