| Alloway v Rodriguez |
| 2009 NY Slip Op 03393 [61 AD3d 591] |
| April 28, 2009 |
| Appellate Division, First Department |
| Cantrese Alloway, Respondent, v Jose A. Rodriguez et al.,Appellants. |
—[*1] Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck (Elizabeth M. Hecht of counsel), forJeffrey and Emmanuel Hiles, appellants. Friedman, Levy, Goldfarb & Weiner, P.C., New York (Ira H. Goldfarb of counsel), forrespondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered October 31, 2008, whichdenied defendant Rodriguez's motion and defendants Hiles's cross motion for summary judgmentdismissing the complaint, unanimously reversed, on the law, without costs, and the motion andcross motion granted. The Clerk is directed to enter judgment in favor of defendants dismissingthe complaint.
Defendants met their initial burden of demonstrating the absence of any permanent orsignificant physical limitation of plaintiff's lumbar or cervical spine by submitting a report fromRodriguez's expert, a neurologist, supported by specific tests indicating that plaintiff had norestrictions in her range of motion, and stating that there was "no finding of any neurologicresidual or permanency based upon her physical examination." In response, plaintiff submittedan affirmation from her treating internist showing that she had a restricted range of motion inboth the cervical and lumbar portions of her spine. She also submitted an MRI report showing acervical bulge and herniation in a lumbar disc. However, the expert's examination and the MRIreport were insufficient to raise an issue of fact as to serious injury, as they failed to adequatelyaddress, in other than speculative and conclusory terms (see Innocent v Mensah, 56AD3d 379, 380 [2008]), either the radiological findings or the effect of a motor vehicle accidentin which plaintiff had previously been involved four years before the subject accident (seeStyle v Joseph, 32 AD3d 212, 214 [2006]).
With respect to the 90/180-day serious injury claim, defendants met their initial burden byrelying on plaintiff's deposition testimony stating that she missed only one week of work afterthe accident, and was not confined to bed for any period afterward. In opposition, plaintiffsubmitted an affidavit stating she was, in fact, confined to bed for a period of time after theaccident. Plaintiff's affidavit clearly contradicts her deposition testimony, and appears to havebeen tailored to avoid its consequences (see Blackmon v Dinstuhl, 27 AD3d 241 [2006]).In any [*2]event, plaintiff's subjective claims of pain and alimitation on sports and exercise activities do not prove a restriction on her usual and customarydaily activities for at least 90 days of the 180 days following the accident (see Becerril v SolCab Corp., 50 AD3d 261 [2008]). Concur—Mazzarelli J.P., Andrias, Nardelli,Catterson and DeGrasse, JJ.