| Byrd v J.R.R. Limo |
| 2009 NY Slip Op 03116 [61 AD3d 801] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Channie Byrd, Respondent, v J.R.R. Limo et al.,Appellants. |
—[*1] Jacoby & Myers, LLP, Newburgh, N.Y. (Finkelstein & Partners, LLP [George A. Kohl 2nd],of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Hinds-Radix, J.), dated September 28, 2008, which deniedtheir motion for summary judgment dismissing the complaint on the ground that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The defendants made a prima facie showing of entitlement to judgment as a matter of lawthrough the submission of the plaintiff's deposition testimony, and the affirmations of theirexamining physicians stating that, based upon their examinations of the plaintiff, the plaintiff didnot have any permanent injury, limitation, or restriction (see Luckey v Bauch, 17 AD3d 411 [2005]; Sims v Megaris, 15 AD3d 468[2005]; Check v Gacevk, 14 AD3d586 [2005]; Paul v Trerotola,11 AD3d 441 [2004]; Mastaccioula v Sciarra, 11 AD3d 434 [2004]). The plaintiff'ssubmissions in opposition failed to raise a triable issue of fact. The affirmation of the plaintiff'streating physician was not based upon a recent examination of the plaintiff, as he only examinedthe plaintiff within the first 2½ months after the accident and more than two years beforethe defendants moved for summary judgment (see Batista v Olivo, 17 AD3d 494 [2005]; Mohamed vDhanasar, 273 AD2d 451 [2000]; Kauderer v Penta, 261 AD2d 365 [1999]).Moreover, while the plaintiff's orthopedic surgeon performed arthroscopic surgery on theplaintiff[*2]'s right shoulder one year after the accident, the mereexistence of a tear in the shoulder is not evidence of a serious injury in the absence of objectiveevidence of the extent of the alleged physical limitations resulting from the injury and theirduration (see Shtesl v Kokoros, 56AD3d 544 [2008]; Choi Ping Wongv Innocent, 54 AD3d 384 [2008]; Cornelius v Cintas Corp., 50 AD3d 1085 [2008]). Here, theplaintiff's treating physician noted that the plaintiff had a full range of motion in her rightshoulder in all directions within weeks after the accident, and the plaintiff's orthopedic surgeonnoted that she had a full range of motion in her right shoulder within six months after thesurgery. Skelos, J.P., Santucci, Angiolillo, Dickerson and Chambers, JJ., concur. [See 21Misc 3d 1109(A), 2008 NY Slip Op 52023(U).]