| Ciancio v Nolan |
| 2009 NY Slip Op 06793 [65 AD3d 1273] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Paolo Ciancio et al., Respondents, v Daniel A. Nolan, Jr.,Appellant. |
—[*1] Domenic M. Recchia, Jr., Brooklyn, N.Y. (Andrew G. Sfouggatakis of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (Hurkin-Torres, J.), dated November 19, 2008, whichdenied his motion for summary judgment dismissing the complaint on the ground that theplaintiff Paolo Ciancio did not 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 defendant's motion forsummary judgment dismissing the complaint is granted.
The defendant met his prima facie burden of showing that the plaintiff Paolo Ciancio(hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of InsuranceLaw § 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]). Thelimitations noted by the defendant's examining orthopedist concerning the injured plaintiff's leftshoulder were insignificant (see Cascov Cocchiola, 62 AD3d 640 [2009]).
In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs submitted,inter alia, the affirmation of the injured plaintiff's treating chiropractor Dr. Enrico Ferdico. WhileDr. Ferdico concluded that the injured plaintiff's injuries were permanent, he failed to base hisfindings on a recent examination of the injured plaintiff (see Diaz v Lopresti, 57 AD3d 832 [2008]; Carrillo v DiPaola, 56 AD3d 712[2008]; Landicho v Rincon, 53AD3d 568, 569 [2008]; Cornelius vCintas Corp., 50 AD3d 1085 [2008]; Young Hwan Park v Orellana, 49 AD3d 721 [2008]; Amato v Fast Repair Inc., 42 AD3d477 [2007]).
Additionally, while the plaintiffs submitted medical evidence that the injured plaintiffsuffered from, inter alia, herniated and bulging discs, as well as a tear in a tendon, those findingsare not evidence of a serious injury in the absence of objective evidence of the extent of thealleged physical limitations resulting from the injury and its duration (see Magid v Lincoln Servs. Corp., 60AD3d 1008, 1009 [2009]; Washington v Mendoza, 57 AD3d 972 [2008]; Cornelius v Cintas Corp., 50 AD3d1085, [*2]1087 [2008]; Shvartsman v Vildman, 47 AD3d 700 [2008]).
The plaintiffs also failed to explain the essential cessation of the injured plaintiff's treatmentafter 2006 (see Pommells v Perez, 4NY3d 566, 574 [2005]; Casco vCocchiola, 62 AD3d 640 [2009]).
Lastly, the plaintiffs failed to submit any competent medical evidence that the injuriessustained by the injured plaintiff rendered him unable to perform substantially all of his dailyactivities for not less than 90 of the first 180 days subsequent to the subject accident (seeSainte-Aime v Ho, 274 AD2d 569 [2000]). Skelos, J.P., Florio, Balkin, Belen and Austin,JJ., concur.