| Zhijian Yang v Alston |
| 2010 NY Slip Op 04236 [73 AD3d 562] |
| May 18, 2010 |
| Appellate Division, First Department |
| Zhijian Yang, Respondent, v Jerry D. Alston et al.,Appellants. |
—[*1] Ross Legan Rosenberg Zelan & Flaks, LLP, New York (Evan Ross of counsel), forrespondent.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered December 16, 2009,which, to the extent appealed from, granted plaintiff's motion to renew a prior order, same courtand Justice, entered June 11, 2009, granting defendants' motion for summary judgment, and uponrenewal, vacated the June 11, 2009 order and denied defendants' motion for summary judgment,unanimously modified, on the law, vacatur denied, defendants' motion for summary judgmentgranted, and otherwise affirmed, without costs. The Clerk is directed to enter judgmentaccordingly.
Defendants met their initial burden of establishing prima facie that plaintiff did not sustain aserious injury (Insurance Law § 5102 [d]) by submitting the affirmed report of anorthopedic surgeon detailing the objective tests he had performed on examination, finding thatplaintiff had full range of motion in her left hip, cervical and lumbar spine, and right knee, andconcluding that plaintiff had no ongoing impairment resulting from the accident. Defendantspointed to plaintiff's deposition testimony wherein she admitted having been injured in both aprior and a subsequent accident, as well as her verified bill of particulars wherein she admittedonly a brief convalescence.
The burden then shifted to plaintiff. Initially, we find that in the absence of any prejudice todefendants, renewal was properly granted to plaintiff to correct a procedural oversight on theprevious motion and allow the submission of her examining physician's report in admissibleform (see Cespedes v McNamee, 308 AD2d 409 [2003]). However, upon renewal,Supreme Court should have adhered to its original determination granting defendants' motion forsummary judgment because plaintiff failed to raise a triable issue of material fact as to whethershe sustained a serious injury in this accident.
The affirmed report of plaintiff's expert, submitted in support of the motion to renew, wasdeficient in several respects. While in his report the examining physician attempted to set forthrange of motion findings with respect to plaintiff's spine and shoulder, he did not compare thosefindings to the standards for normal ranges of motion (see Johnson v Paulino, 49 AD3d 379 [2008]). The range of motiontesting for the hips and knees yielded normal results with no loss of range of motion. In addition,the expert offered no explanation for plaintiff's two-year [*2]cessation of treatment; and he failed to mention, much less accountfor, plaintiff's prior and subsequent accidents, thus rendering speculative his conclusion thatplaintiff's injuries were causally related to the subject accident (see Style v Joseph, 32 AD3d 212,214-215 [2006]).
Plaintiff's serious injury claim, predicated on an alleged inability to engage in substantiallyall of her daily activities for 90 of the first 180 days after the accident, was refuted by admissionsin her verified bill of particulars that she was confined to bed for only two days and to home forone month. No competent medical proof was offered to substantiate her claim under the90/180-day test (see Rossi vAlhassan, 48 AD3d 270 [2008]). Concur—Andrias, J.P., Sweeny, Renwick,Abdus-Salaam and Manzanet-Daniels, JJ.