| Alicea v Troy Trans, Inc. |
| 2009 NY Slip Op 01915 [60 AD3d 521] |
| March 19, 2009 |
| Appellate Division, First Department |
| Cristobal Alicea, Appellant, v Troy Trans, Inc., et al.,Respondents. |
—[*1] Filip L. Tiffenberg, P.C., New York (Filip L. Tiffenberg of counsel), forrespondents.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered December 24,2007, which granted defendants' motion for summary judgment dismissing the complaint forlack of a serious injury as required by Insurance Law § 5102 (d), unanimously affirmed,without costs.
The affirmed medical report of defendants' physician stating, inter alia, that he examinedplaintiff on August 24, 2006 and found no objective clinical evidence of the injuries alleged inplaintiff's bill of particulars, nor any evidence of limited range of motion or other residual injuryas a result of the accident of October 26, 2005, sufficed to show, prima facie, that plaintiff didnot sustain a permanent or significant limitation as a result of the October 26, 2005 accident (see Nagbe v Minigreen HackingGroup, 22 AD3d 326, 326 [2005]). We decline to consider, because improperly raisedfor the first time on appeal, plaintiff's argument that the physician's affirmation was rendereddeficient by his acknowledgment that he did not receive or review medical records anddiagnostic films (see Vasquez vReluzco, 28 AD3d 365, 366 [2006]). Summary judgment was properly granted becauseplaintiff's opposition failed to adduce evidence of a limitation of range of motion based onobjective medical findings made within a reasonable time after the accident (see Thompson v Abbasi, 15 AD3d95, 99 [2005]; Toulson v YoungHan Pae, 13 AD3d 317, 319 [2004]). The report of the physician who examinedplaintiff five days after the accident, on October 31, 2005, may not be considered for thispurpose because it was not sworn or affirmed (see Toulson; Petinrin v Levering, 17 AD3d173, 174 [2005]).
In any event, we would reach the same conclusion even if we were to consider thisphysician's report, the records of the hospital to which plaintiff was taken after the accident, theunsworn MRI reports taken within two weeks of the accident, the unsworn report of the surgeonwho operated on plaintiff's shoulder on January 24, 2006, the unsworn "follow-up examination"dated February 23, 2006, and the affidavit of the physician who examined plaintiff on January29, 2007. While these materials show continuing complaints of pain, a shoulder tear, shouldersurgery, and bulging and herniated discs in the cervical and lumbar spine, they do not contain acontemporaneous quantitative or qualitative assessment of the extent and duration of resultingrange-of-motion limitations (see Nagbe, 22 AD3d at 326; Thompson, 15 AD3dat 97-98; Arjona v Calcano, 7AD3d 279 [2004]). Such assessment is required even where there has been surgery (see Danvers v New York City Tr.Auth., 57 AD3d 252 [2008]). The physician's affidavit fails in this respect because itmerely describes tests that were performed in the past, and provides no specific, objectiveevidence of how the doctor arrived at his findings of limited range of motion at the time of hisexamination, or why he attributed the limitations to the accident (see Bent v Jackson, 15 AD3d 46,49 [2005]).
Plaintiff's bill of particulars alleging that he stayed home from work for only two weeks afterthe accident establishes defendants' entitlement to summary judgment on plaintiff's 90/180-dayclaim (see Onishi v N & B Taxi, Inc., 51 AD3d 594, 595 [2008]).Concur—Tom, J.P., Moskowitz, Renwick and Freedman, JJ.