| Nieves v Michael |
| 2010 NY Slip Op 03885 [73 AD3d 716] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Esilda Nieves, Appellant, v Marc Michael et al.,Respondents. |
—[*1] Perez & Varvaro, Uniondale, N.Y. (Alex M. Temple of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Agate, J.), entered April 21, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants met their 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]; see also Giraldo v Mandanici, 24 AD3d 419, 419-420 [2005]).
In opposition, the plaintiff failed to raise a triable issue of fact. In opposition to thedefendants' motion, the plaintiff principally relied upon the affirmation of her treating physician,Dr. Benjamin Beiber. This affirmation was insufficient to raise a triable issue of fact. Dr. Beiberfailed to address the findings of the defendants' examining physician, Dr. Michael R. Miller, whoconcluded that the plaintiff's injuries and range-of-motion limitations were caused by preexistingdegeneration. This failure rendered speculative Dr. Beiber's conclusion that the plaintiff's injuriesand loss of motion he noted were caused by the subject accident (see Iovino v Scholl, 69 AD3d 799[2010]; Shmerkovich v Sitar Corp.,61 AD3d 843 [2009]; Pamphile vBastien, 61 AD3d 659, 660 [2009]; Levine v Deposits Only, Inc., 58 AD3d 697, 698 [2009]; Marrache v Akron Taxi Corp., 50AD3d 973, 974 [2008]; Giraldo v Mandanici, 24 AD3d at 420).
While Dr. Beiber stated in his affirmation that he examined the plaintiff on February 17,2006, which was shortly after the accident, and noted that the plaintiff had "loss of motion" inher left shoulder, Dr. Beiber failed to set forth the objective testing he did in order to arrive atthat conclusion (see Knopf vSinetar, 69 AD3d 809 [2010]; Spence v Mikelberg, 66 AD3d 765 [2009]; Sapienza v Ruggiero, 57 AD3d643 [2008]; Budhram vOgunmoyin, 53 AD3d 640, 641 [2008]; Piperis v Wan, 49 AD3d 840, 841 [2008]). While Dr. [*2]Beiber examined the plaintiff on October 22, 2008, and notedsignificant limitations in the plaintiff's left shoulder range of motion, neither he nor the plaintiffproffered competent medical evidence that revealed the existence of significant limitations in theplaintiff's left shoulder range of motion that were contemporaneous with the subject accident (see Bleszcz v Hiscock, 69 AD3d890 [2010]; Taylor v Flaherty,65 AD3d 1328 [2009]; Fung vUddin, 60 AD3d 992 [2009]; Gould v Ombrellino, 57 AD3d 608 [2008]; Kuchero v Tabachnikov, 54 AD3d729 [2008]; Ferraro v Ridge CarServ., 49 AD3d 498 [2008]). Without such contemporaneous findings, the plaintiffcould not have raised a triable issue of fact under the permanent loss, permanent consequentiallimitation of use, or the significant limitation of use categories of Insurance Law § 5102(d) (see Jack v Acapulco Car Service, Inc., 72 AD3d 646 [2010]; Bleszcz vHiscock, 69 AD3d at 891; Taylor v Flaherty, 65 AD3d at 1328-1329; Ferraro vRidge Car Serv., 49 AD3d at 498).
The plaintiff failed to submit competent medical evidence that the injuries she allegedlysustained as a result of the subject accident rendered her unable to perform substantially all ofher daily activities for not less than 90 days of the first 180 days thereafter (see Sainte-Aimev Ho, 274 AD2d 569 [2000]). The plaintiff's own deposition testimony established that shemissed, at most, seven days of work and she admitted that she returned thereto to the same dutiesas before the subject accident. Rivera, J.P., Florio, Miller, Chambers and Roman, JJ., concur.