| Robinson-Lewis v Grisafi |
| 2010 NY Slip Op 04763 [74 AD3d 774] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Rosetta Robinson-Lewis, Appellant, v Pasquale V. Grisafi,Respondent. |
—[*1] Richard T. Lau, Jericho, N.Y. (Keith E. Ford of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Nassau County (Palmieri, J.), entered September 2, 2009, which grantedthe defendant's motion for summary judgment dismissing the complaint on the ground that shedid not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2) ajudgment of the same court entered September 29, 2009, which, upon the order, is in favor of thedefendant and against her dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
Contrary to the plaintiff's contentions, the Supreme Court correctly concluded that thedefendant met his prima facie burden of showing that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeToure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]; see also Kublo vRzadkowski, 71 AD3d 831 [2010]). In opposition, the plaintiff failed to raise a triableissue of fact.
The affirmation of Dr. William Sonstein, one of the plaintiff's treating physicians, wasinsufficient to raise a triable issue of fact. While Dr. Sonstein stated that, upon his examinationof the plaintiff, the date of which is not noted in the affirmation, she had limitations of motion inher neck, back, and left arm, he failed to set forth any objective medical testing he performed inorder to arrive at those conclusions (seeKnopf v Sinetar, 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 [*2]AD3d 840, 841 [2008]). Furthermore, Dr. Sonstein failed toquantify any such limitations or provide a qualitative assessment of those regions of theplaintiff's body in his affirmation (see Toure v Avis Rent A Car Sys., 98 NY2d at 350;Ortiz v Ianina Taxi Servs., Inc., 73 AD3d 721, 721-722 [2010]; Acosta v Alexandre, 70 AD3d735 [2010]; Giannini v Cruz,67 AD3d 638, 639 [2009]; Taylor vFlaherty, 65 AD3d 1328 [2009]; Barnett v Smith, 64 AD3d 669, 671 [2009]). The same analysisapplies to the affidavit of Dr. Charles Aronica, the plaintiff's treating chiropractor, who statedthat, upon some undated examination he performed on the plaintiff, she had limitations ofmotion in the cervical region of her spine and her left arm. Dr. Aronica never set forth theobjective medical testing he performed in order to arrive at those conclusions, and neverquantified any limitations or provided a qualitative assessment of those regions of the plaintiff'sbody in his affidavit.
The affidavit of the plaintiff was insufficient, on its own, to raise a triable issue of fact(see Villante v Miterko, 73 AD3d 757, 757 [2010]; Shvartsman v Vildman, 47 AD3d 700 [2008]; Fisher vWilliams, 289 AD2d 288 [2001]), since she failed to submit competent medical evidencesufficient to raise a triable issue of fact as to whether the injuries she allegedly sustained in thesubject accident rendered her unable to perform substantially all of her daily activities for notless than 90 days of the first 180 days subsequent to the subject accident (see Sainte-Aime vHo, 274 AD2d 569 [2000]).
Thus, the Supreme Court properly granted the defendant's motion and dismissed thecomplaint. Fisher, J.P., Covello, Angiolillo, Leventhal and Roman, JJ., concur.