| Rivera v Bushwick Ridgewood Props., Inc. |
| 2009 NY Slip Op 04407 [63 AD3d 712] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Iris A. Rivera, Respondent, v Bushwick RidgewoodProperties, Inc., et al., Appellants, et al., Defendant. |
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In an action, inter alia, to recover damages for personal injuries, the defendants BushwickRidgewood Properties, Inc., and Ruben Cruz appeal, as limited by their brief, from so much ofan order of the Supreme Court, Kings County (F. Rivera, J.), dated December 17, 2008, asdenied their motion for summary judgment dismissing the complaint insofar as asserted againstthem 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 insofar as appealed from, on the law, with costs, themotion of the defendants Bushwick Ridgewood Properties, Inc., and Ruben Cruz for summaryjudgment dismissing the complaint insofar as asserted against them is granted and, uponsearching the record, summary judgment is awarded to the defendant Richard A. Brathwaitedismissing the complaint insofar as asserted against him.
Contrary to the Supreme Court's determination, the appellants met their prima facie burdenof showing 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, 956-957 [1992]). In opposition,the plaintiff failed to raise a triable issue of fact.
Although Dr. Soe Nyunt, the plaintiff's treating physician, stated in his affirmation that theplaintiff sustained permanent injuries to her cervical spine, lumbar spine, left shoulder, and leftknee as a result of the subject accident, his affirmation failed to raise a triable issue of fact. As tothe plaintiff's [*2]cervical spine, Dr. Nyunt failed to set forth inhis affirmation the results of any recent examination he performed on the plaintiff's cervicalspine that revealed the existence of significant limitations of motion (see generally Diaz v Lopresti, 57AD3d 832 [2008]; Carrillo vDiPaola, 56 AD3d 712 [2008]; Landicho v Rincon, 53 AD3d 568, 569 [2008]; Cornelius v Cintas Corp., 50 AD3d1085 [2008]; Young Hwan Park vOrellana, 49 AD3d 721 [2008]; Amato v Fast Repair Inc., 42 AD3d 477 [2007]). While Dr.Nyunt's affirmation described a limitation of motion to the plaintiff's left shoulder based on arecent examination, neither Dr. Nyunt nor the plaintiff proffered any objective medical evidencethat revealed the existence of a significant limitation in the left shoulder that wascontemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563 [2008]; Ferraro v Ridge Car Serv., 49 AD3d498 [2008]; D'Onofrio v Floton,Inc., 45 AD3d 525 [2007]). With respect to the plaintiff's left knee, Nyunt again merelynoted, in his affirmation, that the plaintiff sustained a limitation of motion based on a recentexamination, but neither he nor the plaintiff proffered any objective medical evidence thatrevealed the existence of a significant limitation in the left knee that was contemporaneous withthe subject accident. With respect to the plaintiff's lumbar spine, Dr. Nyunt failed to address thefact that the plaintiff was involved in an accident at work in 2007, in which she injured her lowerback. The failure to address this accident rendered speculative Dr. Nyunt's conclusion that thelimitations he noted in the plaintiff's lumbar spine were caused by the subject accident (see Donadio v Doukhnych, 55 AD3d532 [2008]; Seck v MinigreenHacking Corp., 53 AD3d 608 [2008]).
The affirmed report referable to a magnetic resonance imaging (hereinafter MRI) scan,prepared by radiologist Steven Veigh, merely revealed that the plaintiff, as of January 10, 2005,showed evidence of a disc herniation at L5-S1 and a disc bulge at L4-5. The mere existence of aherniated or bulging disc is not evidence of a serious injury in the absence of objective evidenceof the extent of the alleged physical limitations resulting from the disc injury, as well as itsduration (see Sealy v Riteway-1, Inc.,54 AD3d 1018 [2008]; Kilakosv Mascera, 53 AD3d 527 [2008]; Cerisier v Thibiu, 29 AD3d 507 [2006]; Bravo v Rehman, 28 AD3d 694[2006]; Kearse v New York City Tr.Auth., 16 AD3d 45 [2005]). The affirmed MRI report of radiologist Robert ScottSchepp concerning the plaintiff's left shoulder merely revealed that, as of November 18, 2004,the plaintiff suffered from tendonitis. For the purpose of ascertaining the existence of a seriousinjury, tendonitis, like disc bulges and herniations, must be related to objective evidence of theextent of alleged physical limitation resulting from the condition, as well as its duration.
The plaintiff also failed to submit competent medical evidence that the injuries she allegedlysustained in the subject accident rendered her unable to perform substantially all of her usual andcustomary daily activities for not less than 90 days of the first 180 days subsequent to the subjectaccident (see Roman v Fast Lane CarServ., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).The plaintiff admitted in her deposition testimony that she missed no time from work as a resultof the subject accident.
Moreover, the plaintiff failed to adequately explain the gap in treatment from the time shestopped seeking treatment on a date only three months after the subject accident, until June 12,2008 (see Pommells v Perez, 4NY3d 566, 574 [2005]; Garcia vLopez, 59 AD3d 593 [2009]).
The defendant Richard A. Brathwaite separately moved for summary judgment dismissingthe complaint insofar as asserted against him on the same ground as that on which the appellantsmoved for summary judgment. Although Brathwaite's motion was denied, he, unlike theappellants, declined to appeal from so much of the order as was adverse to him. Nonetheless, thisCourt has the authority to search the record and award summary judgment to a nonappealingparty with respect to an issue that was [*3]the subject of themotion before the Supreme Court (seeGarcia v Lopez, 59 AD3d 593 [2009]; Michel v Blake, 52 AD3d 486 [2008]; Marrache v Akron Taxi Corp., 50AD3d 973 [2008]; Colon v Vargas,27 AD3d 512, 514 [2006]; cf. Dunham v Hilco Constr. Co., 89 NY2d 425,429-430 [1996]). Upon searching the record, we award summary judgment to Brathwaitedismissing the complaint insofar as asserted against him on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) (seeCPLR 3212 [b]). Mastro, J.P., Fisher, Miller, Dickerson and Chambers, JJ., concur.