| Cantave v Gelle |
| 2009 NY Slip Op 02556 [60 AD3d 988] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Gregory Cantave, Respondent, v Jerry Gelle, Defendant,and Mustaffa Abu-Baker et al., Appellants. |
—[*1] Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Mustaffa Abu-Bakerand Milan Cab Corp. appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Dorsa, J.), dated June 11, 2008, as denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendants Mustaffa Abu-Baker and Milan Cab Corp. for summary judgmentdismissing the complaint insofar as asserted against them is granted.
The moving defendants submitted an affirmation of their examining physician stating that,based upon his examination of the plaintiff, it was his opinion that the plaintiff did not have anypermanent injury, limitation, or restriction. The physician tested the ranges of motion of theplaintiff's cervical and lumbar spines, as well as his shoulders, and found that they were normal.In addition, the physician set forth the details of his measurements as well as the norms that hemeasured them against. This was sufficient to establish, prima facie, the moving defendants'entitlement to judgment as a matter of law (see Gaddy v Eyler, 79 NY2d 955 [1992];Luckey v Bauch, 17 AD3d 411 [2005]; Sims v Megaris, 15 AD3d 468[2005]; Check v Gacevk, 14 AD3d 586 [2005]).[*2]
In opposition, the plaintiff failed to raise a triable issue offact. Although the plaintiff had seriously injured his back in a motor vehicle accident just twoyears prior to the instant accident, and he was out of work for two months following that prioraccident, neither of the plaintiff's physicians indicated that they reviewed the medical recordsarising from that prior accident. Accordingly, their conclusions that the plaintiff's injuries andlimitations were caused solely by the subject accident were highly speculative (see Moore vSarwar, 29 AD3d 752 [2006]; Tudisco v James, 28 AD3d 536 [2006]; Bennett vGenas, 27 AD3d 601 [2006]; Allyn v Hanley, 2 AD3d 470 [2003]). In addition, theplaintiff testified at his deposition that he went back to work as a field technician for Verizon onthe next business day after the accident, which had occurred on a weekend, and that he was nothomebound or bedridden as a result of the accident, which demonstrated that his injuries did notprevent him from performing substantially all of the material acts constituting his usual andcustomary daily activities during at least 90 out of the first 180 days following the accident(see Geliga v Karibian, Inc., 56 AD3d 518 [2008]; Sanchez v WilliamsburgVolunteer of Hatzolah, Inc., 48 AD3d 664 [2008]). The plaintiff's current complaints, as setforth in his affidavit, while suggestive of discomfort, do not suggest the inability to performsubstantially all of his usual and customary daily activities (see Ingram v Doe, 296 AD2d530 [2002]; Berk v Lopez, 278 AD2d 156 [2000]; Barbarulo v Allery, 271 AD2d897 [2000]; Taber v Skulicz, 265 AD2d 902 [1999]).
Accordingly, the moving defendants' motion for summary judgment dismissing thecomplaint insofar as asserted against them should have been granted. Rivera, J.P., Dillon, Miller,Balkin and Leventhal, JJ., concur.