| Nguyen v Abdel-Hamed |
| 2009 NY Slip Op 02660 [61 AD3d 429] |
| April 7, 2009 |
| Appellate Division, First Department |
| Michelle Nguyen, Respondent, v Yasser Abdel-Hamed etal., Defendants, and Lei Chang et al., Appellants. |
—[*1] Greenberg & Stein, P.C., New York (Ian Asch of counsel), for respondent.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered June 25, 2008,which, to the extent appealed from, denied defendants-appellants' motion for summary judgmentdismissing the complaint on the ground that plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d), unanimously reversed, on the law, without costs,and the motion granted, and, upon a search of the record, the remaining defendants' motion forsummary judgment granted as well. The Clerk is directed to enter judgment in favor ofdefendants dismissing the complaint in its entirety.
Defendants made a prima facie showing that plaintiff suffered no permanent or significantlimitation of use of her cervical, thoracic and lumbar spine, by submitting the affirmed medicalreport of a neurologist describing the tests he performed and setting forth the results supportinghis finding that plaintiff had full range of motion in the spine and his conclusion that plaintiffwas not disabled at the time of the examination and that there was no permanency or residualeffect (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; see Taylor v Terrigno, 27 AD3d316 [2006]). Plaintiff's chiropractor, while concluding, to the contrary, that plaintiff'sinjuries were permanent and significant, failed to set forth any objective basis for his findings,such as the tests he performed to measure plaintiff's range of motion (see Toure,supra; Harris v Ariel Transp.Corp., 55 AD3d 323 [2008]; Cartha v Quinn, 50 AD3d 530 [2008], lv denied 11 NY3d704 [2008]; Rodriguez v Abdallah,51 AD3d 590, 591 [2008]).
Defendants also demonstrated that plaintiff suffered no "medically determined injury orimpairment of a non-permanent nature" (Insurance Law § 5102 [d]), by submittingplaintiff's deposition testimony that she was confined to home for two weeks and missed onlytwo or three days of work following the accident (see Prestol v McKissock, 50 AD3d 600 [2008]). To the extentplaintiff's opposition affidavit differs with her testimony regarding her alleged impairmentduring the 90/180-day period, the affidavit appears to have been tailored to avoid theconsequences of her earlier testimony and is insufficient to defeat summary judgment (see Amaya [*2]v Denihan Ownership Co., LLC, 30 AD3d 327 [2006]).
Upon a search of the record, the nonappealing defendants' motion is also granted (see Lopez v Simpson, 39 AD3d420 [2007]). Concur—Andrias, J.P., Friedman, McGuire and Moskowitz, JJ.