| Kuperberg v Montalbano |
| 2010 NY Slip Op 03287 [72 AD3d 903] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Maureen Kuperberg, Respondent, v Joan Montalbano,Appellant. |
—[*1] Wingate, Russotti & Shapiro, LLP, New York, N.Y. (David M. Schwarz of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Nassau County (Mahon, J.), entered August 14, 2009, which granted theplaintiff's motion for summary judgment on the issue of liability and denied her cross motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, the defendant's cross motion forsummary judgment dismissing the complaint is granted, and the plaintiff's motion for summaryjudgment is denied as academic.
On November 12, 2007, a motor vehicle being operated by the defendant made contact withthe plaintiff, a pedestrian, in the parking lot of a shopping center in Bayshore. After receivingtreatment at the emergency room of Franklin Hospital later on the day of the occurrence, theplaintiff did not receive any additional treatment for her alleged injuries, until January 22, 2008,71 days later, when she was treated by Timothy Reish, an orthopedist. On or about April 2008,the plaintiff commenced the present action, alleging that, as a result of the contact with thedefendant's motor vehicle, she sustained a torn rotator cuff in her right shoulder.
After joinder of issue, the plaintiff moved for summary judgment on the issue of liability,and the defendant cross-moved for summary judgment dismissing the complaint on the groundthat the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d). The defendant met her prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]; Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712 [2009]).The defendant's evidence, which included, inter alia, an X-ray report prepared in the emergencyroom on the day of the occurrence and a magnetic resonance imaging (hereinafter MRI) reportprepared by the plaintiff's own radiologist with regard to an MRI of the plaintiff's right shoulderperformed in January 2008, indicated that she suffered from a preexisting degenerative disorderin her right shoulder. The affirmed report prepared by the [*2]defendant's radiologist, Dr. Jessica Berkowitz, which the defendantalso submitted in support of her cross motion, indicated that Dr. Berkowitz had reviewed theforegoing MRI and found that it revealed no evidence of acute traumatic injury to the plaintiff'sright shoulder. Moreover, at her deposition, the plaintiff acknowledged that she had not missedany time from her part-time job as a result of the accident and continued to take trips to Floridaevery 2 1/2 weeks, as she had done prior to the accident. The plaintiff's alleged injuries did notprevent her from performing "substantially all" of the material acts constituting her customarydaily activities during at least 90 out of the first 180 days following the accident (see Sanchez v Williamsburg Volunteer ofHatzolah, Inc., 48 AD3d 664, 665 [2008]).
The admissible medical evidence submitted by the plaintiff in opposition to the cross motionfailed to raise a triable issue of fact (see CPLR 3212 [b]). The plaintiff failed to profferany objective medical evidence that revealed the existence of a significant limitation in her rightshoulder that was contemporaneous with the subject accident (see Rivera v BushwickRidgewood Props., Inc., 63 AD3d at 713). Based upon the record before it, the SupremeCourt should have granted the defendant's cross motion for summary judgment and denied asacademic the plaintiff's motion for summary judgment on the issue of liability. Santucci, J.P.,Angiolillo, Leventhal and Lott, JJ., concur.