| Sham v B&P Chimney Cleaning & Repair Co., Inc. |
| 2010 NY Slip Op 02535 [71 AD3d 978] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Roshinne Sham, Respondent, v B&P Chimney Cleaningand Repair Co., Inc., et al., Defendants, and Harry L. Scutt et al.,Appellants. |
—[*1] Morton Povman, P.C., Forest Hills, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants Harry L. Scutt andOrange Transportation Services appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Rosengarten, J.), entered July 21, 2009, as denied their motionfor summary judgment dismissing the complaint insofar as asserted against them on the groundthat the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theappellants' motion for summary judgment dismissing the complaint insofar as asserted againstthem is granted.
The appellants established, prima facie, through the affirmed report of their expertneurologist and the plaintiff's deposition testimony, that the plaintiff did not sustain a seriousinjury 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, 352 [2002]; Gaddy v Eyler,79 NY2d 955, 956-957 [1992]; Richards v Tyson, 64 AD3d 760 [2009]; Berson vRosada Cab Corp., 62 AD3d 636 [2009]; Byrd v J.R.R. Limo, 61 AD3d 801 [2009]).In opposition, the plaintiff's submissions were insufficient to raise a triable issue of fact. Whilethe plaintiff's treating physician reported that he had treated the plaintiff from August 8, 2007,about one month after the accident, until February 8, 2008, and had most recently examined heron March 17, 2009, he only recorded the results of the objective testing he performed at theinitial visit on August 8, 2007. Any subjective complaints of pain and limitation of motion mustbe substantiated by verified objective medical findings (see Dantini v Cuffie, 59 AD3d490 [2009]; Villeda v Cassas, 56 AD3d 762 [2008]), based on a recent examination ofthe plaintiff (see Johnson v Berger, 56 AD3d 725 [2008]; D'Alba v Yong-AeChoi, 33 AD3d 650 [2006]; Oliva v Gross, 29 AD3d 551 [2006]). Similarly, anyprojections of permanence have no probative value in the absence of a recent examination(see Cornelius v Cintas Corp., 50 AD3d 1085 [2008]). Furthermore, the plaintiff alsofailed to produce objective medical evidence to substantiate the existence of an injury whichlimited her usual and customary daily activities for at least 90 of the first 180 days following theaccident (see Laguerre v Chavarria, 41 AD3d 437 [2007]; McConnell vOuedraogo, 24 AD3d 423 [2005]; Davis v New York City Tr. Auth., [*2]294 AD2d 531 [2002]). Rivera, J.P., Florio, Miller, Chambers andRoman, JJ., concur.