| Berson v Rosada Cab Corp. |
| 2009 NY Slip Op 03682 [62 AD3d 636] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Bradley A. Berson, Respondent, v Rosada Cab Corp. et al.,Appellants. |
—[*1] Yohan Choi, New York, N.Y. (Jonathan S. Horn of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Hurkin-Torres, J.), dated October 12, 2007, which deniedtheir motion for summary judgment dismissing the complaint on the ground that they were not atfault in the happening of the accident and their separate motion for summary judgmentdismissing the complaint on the ground that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, the defendants' motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) is granted, and thedefendants' motion for summary judgment dismissing the complaint on the ground that they werenot at fault in the happening of the accident is denied as academic.
This action arose from a two-car accident which occurred in Manhattan at the intersection ofWest 57th Street and 11th Avenue. The plaintiff commenced this action alleging that, as a resultof the accident, he sustained serious injuries within the meaning of Insurance Law § 5102(d). The defendants moved for summary judgment dismissing the complaint on the ground thatthey were not at fault in the happening of the accident and separately moved for summaryjudgment dismissing the complaint on the ground that the plaintiff did not sustain a seriousinjury. In the order appealed from, the Supreme Court denied the motions, and we reverse theorder.[*2]
The defendants established their prima facie entitlementto judgment as a matter of law by submitting the affirmed report of their orthopedist, whoexamined the plaintiff and concluded that he had a normal orthopedic examination (seeToure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Gaddy v Eyler, 79 NY2d955, 956-957 [1992]; Kearse v NewYork City Tr. Auth., 16 AD3d 45, 51-52 [2005]; Lowell v Peters, 3 AD3d 778, 779 [2004]). At his deposition, theplaintiff testified that, as a result of the subject motor vehicle accident, he missed only two orthree days from his job as a computer designer. The plaintiff's alleged injuries did not preventhim from performing substantially all of the material acts constituting his usual and customarydaily activities during at least 90 out of the first 180 days following the accident (see Geliga v Karibian, Inc., 56 AD3d518, 519 [2008]; Sanchez vWilliamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664, 665 [2008]; Sainte-Aime vHo, 274 AD2d 569, 570 [2000]). In opposition, the plaintiff failed to raise a triable issue offact as to serious injury (see CPLR 3212 [b]; Hagan v Thompson, 234 AD2d 420[1996]). Although the plaintiff's medical expert indicated in his affirmation that he examined theplaintiff contemporaneously with the motor vehicle accident, he failed to properly set forth hisfindings of restricted motion in the plaintiff's cervical spine and compare the findings to theplaintiff's normal range of motion (seeMorris v Edmond, 48 AD3d 432, 433 [2008]; Umar v Ohrnberger, 46 AD3d 543 [2007]; Sullivan v Dawes, 28 AD3d 472[2006]). Accordingly, the defendants are entitled to summary judgment dismissing the complainton the ground that the plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d). Rivera, J.P., Balkin, Leventhal and Lott, JJ., concur.