| Lazarus v Perez |
| 2010 NY Slip Op 04105 [73 AD3d 528] |
| May 13, 2010 |
| Appellate Division, First Department |
| Nikita L. Lazarus, Appellant, v Rafael Perez et al.,Respondents, et al., Defendant. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Nelson S. RomÁn, J.), entered on or about May22, 2008, which, to the extent appealable, denied plaintiff's motion to renew a prior ordergranting the motion by defendants Perez and Best Auto for summary judgment dismissing thecomplaint, unanimously affirmed, without costs.
In the absence of new facts not offered on the prior motion that might have led to a differentresult (CPLR 2221 [e]), plaintiff's motion for renewal was properly denied (see Rosado v Edmundo Castillo Inc.,54 AD3d 278, 279 [2008]). Even were we to consider the merits, we would find plaintiff'sargument without substance. Although plaintiff's contemporaneous medical records and reportsfrom South Africa were neither certified nor sworn, plaintiff could rely upon them becausedefendants referred to these documents in support of their motion for summary judgment.Nevertheless, these doctors discerned no significant abnormalities and found plaintiff to be "freeof any neurological signs." Nor do plaintiff's medical records contain any quantitativeassessment of a loss of range of motion, spinal defects or other serious abnormalities. It is wellsettled that contemporaneous, objective proof of injury, such as an expert's designation of anumeric percentage loss of range of motion or the extent or degree of physical limitation, isnecessary to satisfy the statutory serious injury threshold (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Toure vAvis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]).
Plaintiff's argument with regard to the 90/180 rule (Insurance Law § 5102 [d]) issimilarly unavailing. Despite plaintiff's contention that she missed some time from college as aresult of her accident, she failed to submit medical evidence to show that she could not perform"substantially all of the material acts which constitute [her] usual and customary daily activities"(id.) for not less than 90 of the first 180 days following the accident.Concur—Andrias, J.P., Saxe, Sweeny, Moskowitz and Abdus-Salaam, JJ.