| Wallace v Adam Rental Transp., Inc. |
| 2009 NY Slip Op 09217 [68 AD3d 857] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Lorraine Wallace et al., Plaintiffs, and Joanne Bailey,Appellant, v Adam Rental Transportation, Inc., et al., Defendants, and HortonTransportation II, Inc., et al., Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondents.
In a consolidated action to recover damages for personal injuries, the plaintiff Joanne Baileyappeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated January 14,2009, which granted the motion of the defendants Horton Transportation II, Inc., and ArifGardashov for summary judgment dismissing the complaint insofar as asserted by her againstthem on the ground that she did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants Horton Transportation II, Inc., and Arif Gardashov met their prima facieburden of showing that the plaintiff Joanne Bailey did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure vAvis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957[1992]; see also Giraldo v Mandanici,24 AD3d 419 [2005]; Meyersv Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]). In opposition, Bailey failed toraise a triable issue of fact. In opposition, Bailey principally relied on the affirmation of hertreating physician, Dr. Boris Kleyman. That affirmation was insufficient to raise any triableissues of fact. While Kleyman set forth range-of-motion findings with respect to Bailey's rightshoulder that were contemporaneous with the accident, he failed to compare those findings towhat is normal (see Page v Belmonte,45 AD3d 825 [2007]; Malavev Basikov, 45 AD3d 539 [2007]; Fleury v Benitez, 44 AD3d 996 [2007]; Nociforo v Penna, 42 AD3d 514[2007]). Moreover, Kleyman failed to set forth any recent range-of-motion findings concerningBailey's right shoulder in his affirmation.
As to Bailey's right knee, Dr. Kleyman failed to set forth any range-of-motion findings (see LaMarre v Michelle Taxi, Inc., 60AD3d 911 [2009]; Ponciano vSchaefer, 59 AD3d 605 [2009]; Fiorillo v Arriaza, 52 AD3d 465 [2008]; Sharma v Diaz, 48 AD3d 442[2008]; Porto v Blum, 39 AD3d614 [2007]).
With respect to Bailey's lumbar spine, Kleyman noted significant limitations therein based[*2]on examinations contemporaneous with the subject accident,as well as recent examinations, but failed to acknowledge the fact that the plaintiff was involvedin a prior accident in which she injured her lower back. This failure rendered speculativeKleyman's conclusion that the injuries and limitations he noted with respect to Bailey's lumbarspine were the result of the subject accident (see Joseph v A & H Livery, 58 AD3d 688 [2009]; Penaloza v Chavez, 48 AD3d 654[2008]; Zinger v Zylberberg, 35AD3d 851, 852 [2006]; Tudisco vJames, 28 AD3d 536 [2006]; Bennett v Genas, 27 AD3d 601 [2006]; Allyn v Hanley, 2 AD3d 470[2003]). Dillon, J.P., Miller, Eng, Hall and Sgroi, JJ., concur.