| Staff v Yshua |
| 2009 NY Slip Op 01211 [59 AD3d 614] |
| February 17, 2009 |
| Appellate Division, Second Department |
| Michael Staff, Respondent, v Mair Yshua et al.,Appellants. |
—[*1] Friedman & Moses, LLP, Garden City, N.Y. (Lisa M. Comeau of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Solomon, J.), dated December 13, 2007, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
Contrary to the Supreme Court's determination, the defendants' submissions were sufficientto establish, prima facie, their entitlement to judgment as a matter of law dismissing thecomplaint on the ground that the plaintiff did not sustain a serious injury as defined by InsuranceLaw § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955 [1992]; Batista v Olivo, 17 AD3d 494[2005]; Grant v Fofana, 10 AD3d446 [2004]). The defendants presented the affirmation of an orthopedist, who, with a visualscale and goniometer, tested the range of motion of the plaintiff's left shoulder, right elbow, lefthip, and left knee. The orthopedist reported that the ranges of motion all were within normalranges, and set forth his specific measurements, and compared them to the norms. He alsodescribed other orthopedic tests that he performed, and reported that the results were allnegative. The defendant's orthopedist concluded that the plaintiff's injuries were now resolvedand without permanency, and that the plaintiff was capable of working and performing all of hisdaily living activities without restriction. In opposition, the plaintiff failed to raise a triable issueof fact as to whether he had sustained a [*2]serious injury (see Luckey v Bauch, 17 AD3d411 [2005]; Kivlan v Acevedo,17 AD3d 321 [2005]; Fisher v Williams, 289 AD2d 288 [2001]). Mastro, J.P.,Fisher, Florio, Carni and Eng, JJ., concur.