| Conder v City of New York |
| 2009 NY Slip Op 03860 [62 AD3d 743] |
| May 12, 2009 |
| Appellate Division, Second Department |
| Teresa Conder, Respondent, v City of New York et al.,Defendants, and Giraldo Rubelio, Appellant. |
—[*1] Samuel J. Lurie, New York, N.Y. (Dennis A. Breen of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Giraldo Rubelio appealsfrom an order of the Supreme Court, Queens County (Taylor, J.), dated September 22, 2008,which denied his motion for summary judgment dismissing the complaint insofar as assertedagainst him on the ground that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the appellant's motion forsummary judgment dismissing the complaint insofar as asserted against him is granted.
Contrary to the determination of the Supreme Court, the appellant established, prima facie,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 NY2d345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The appellant met his burden bysubmitting, inter alia, the affirmed report of a board-certified orthopedic surgeon who conductedan independent medical examination of the plaintiff, during which he performed various range ofmotion and other objective tests (seeCharley v Goss, 54 AD3d 569 [2008], affd 12 NY3d 750 [2009]; Johnson v County of Suffolk, 55AD3d 875 [2008]). In opposition, the plaintiff failed to raise a triable issue of fact. Theplaintiff did not proffer any objective medical evidence showing range-of-motion limitations inher spine or knees, or any other area, that were contemporaneous with the subject accident (see Collado v Satellite Solutions & [*2]Electronics of WNY, LLC, 56 AD3d 411 [2008]; Kurin v Zyuz, 54 AD3d 902[2008]; Perdomo v Scott, 50 AD3d1115 [2008]; Scotto v Suh, 50AD3d 1012 [2008]). Moreover, in the absence of any objective medical evidencecontemporaneous with the plaintiff's accident, there was no competent medical evidence toestablish that she sustained any medically determined injuries of a nonpermanent nature whichprevented her from performing substantially all of her usual and customary daily activities fornot less than 90 of the first 180 days following the 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]).
Accordingly, the appellant's motion for summary judgment should have been granted.Mastro, J.P., Fisher, Miller, Dickerson and Chambers, JJ., concur.