| Pamphile v Bastien |
| 2009 NY Slip Op 02765 [61 AD3d 659] |
| April 7, 2009 |
| Appellate Division, Second Department |
| Frantz Pamphile, Respondent, v Marc C. Bastien,Appellant. |
—[*1] Harmon, Linder, & Rogowsky (Mitchell Dranow, Mineola, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated July17, 2008, as denied his cross motion for summary judgment dismissing the complaint on theground that the plaintiff 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 thedefendant's cross motion for summary judgment dismissing the complaint is granted.
The defendant made a prima facie showing of his entitlement to judgment as a matter of lawdismissing the complaint through the submission of the plaintiff's deposition testimony and theaffirmed medical reports of his examining neurologist, orthopedist, and radiologist, whichestablished that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys.,98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; Johnson v Berger, 56 AD3d 725[2008]). In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff'stwo examining physicians asserted that they had found limitations in the ranges of motion of theplaintiff's lumbar spine and left knee upon their examinations over 2½ years after theaccident, neither doctor reconciled these findings with those of the plaintiff's treating physicianwho reported finding a full range of motion in the left knee 2½ weeks after the accident,and did not note any limitations in the lumbar spine or left knee upon a follow-up examination 9months after the accident (see Carrillo v DiPaola, 56 AD3d [*2]712 [2008]; Felix v Wildred, 54 AD3d 891 [2008]; Magarin v Kropf, 24 AD3d 733[2005]). Moreover, none of the plaintiff's physicians addressed the finding of the defendant'sradiologist that the magnetic resonance imaging studies of the plaintiff's lumbar spine and leftknee revealed only degenerative conditions which were not causally related to the accident (see Levine v Deposits Only, Inc., 58AD3d 697 [2009]; Johnson vBerger, 56 AD3d 725 [2008]; Ciordia v Luchian, 54 AD3d 708 [2008]). Finally, there was nocompetent medical evidence to establish that the plaintiff had sustained a medically-determinedinjury of a nonpermanent nature which prevented him from his usual and customary activities for90 days of the 180 days following the subject accident (see Sainte-Aime v Ho, 274AD2d 569 [2000]; Arshad v Gomer, 268 AD2d 450 [2000]; DiNunzio v County ofSuffolk, 256 AD2d 498, 499 [1998]). Rivera, J.P., Dillon, Miller, Balkin and Leventhal, JJ.,concur.