| Resek v Morreale |
| 2010 NY Slip Op 05377 [74 AD3d 1043] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Martin J. Resek, Jr., et al., Appellants, v Anne Morreale etal., Respondents. |
—[*1] Eisenberg & Kirsch, Liberty, N.Y. (Michael D. Wolff of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Dutchess County (Sproat, J.), dated September 11, 2009, which grantedthe defendants' motion for summary judgment dismissing the complaint on the ground that theplaintiff Martin Resek, Jr., 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 Martin J. Resek, Jr.(hereinafter the injured plaintiff), did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent aCar Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Inopposition, the plaintiffs failed to raise a triable issue of fact.
Initially, the magnetic resonance imaging report of the injured plaintiff's left shoulder, datedAugust 30, 2004, as authored by Dr. Frank Starvaggi, and the medical report of Dr. David T.Stamer dated September 14, 2004, were insufficient to raise a triable issue of fact because theywere unaffirmed (see Grasso v Angerami, 79 NY2d 813 [1991]; Lozusko v Miller, 72 AD3d 908[2010]; Bleszcz v Hiscock, 69AD3d 890 [2010]; Singh vMohamed, 54 AD3d 933 [2008]; Verette v Zia, 44 AD3d 747 [2007]; Nociforo v Penna, 42 AD3d 514[2007]).
In an affirmation, Dr. William O. Thompson stated that he examined the injured plaintiff forthe first time on September 28, 2006, and again on May 19, 2009. Dr. Thompson failed to setforth any findings from his initial examination of the injured plaintiff. As to his most recentexamination of the injured plaintiff, on May 19, 2009, Dr. Thompson noted that the injuredplaintiff had "restricted" range of motion in the left shoulder. However, Dr. Thompson did notset forth any objective testing he did in order to arrive at that conclusion (see Fiorillo v Arriaza, 52 AD3d465 [2008]; Murray vHartford, 23 AD3d 629 [2005]; Nozine v Sav-On Car Rentals, 15 AD3d 555, 556 [2005]; Bailey v Ichtchenko, 11 AD3d419, 420 [2004]; Kauderer v Penta, 261 AD2d 365, 366 [1999]). Dr. Thompson alsofailed to reconcile his findings of limitation in the plaintiff's left shoulder in May 2009, as setforth in his affirmation, with the report of the injured plaintiff's other treating physician, Dr. GaryFink, who found no limitations in the injured plaintiff's left shoulder less than one monthpost-accident (see Raleigh v Ram,60 AD3d 747 [2009]).[*2]
The plaintiffs failed to proffer any competent medicalevidence demonstrating the existence of significant limitations in the injured plaintiff's leftshoulder 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]). While the plaintiffs relied upon the affirmed medicalreport of Dr. Paul Jones, an independent orthopedist who examined the injured plaintiff onJanuary 28, 2005, more than five months post-accident, this was not contemporaneous with theaccident. Without such contemporaneous findings, the plaintiffs were unable to raise a triableissue of fact as to whether the injured plaintiff sustained a serious injury to his left shoulderunder the permanent consequential limitation of use or the significant limitation of use categoriesof Insurance Law § 5102 (d) as a result of the subject accident (see Jack v Acapulco Car Serv., Inc., 72AD3d 646 [2010]; Bleszcz v Hiscock, 69 AD3d at 891; Taylor v Flaherty,65 AD3d at 1328-1329; Ferraro v Ridge Car Serv., 49 AD3d at 498). Furthermore, whileDr. Jones set forth left shoulder range of motion findings from January 28, 2005, he failed tocompare those findings to what is normal (see Johnson v Tranquille, 70 AD3d 645 [2010]; Morris v Edmond, 48 AD3d 432[2008]).
The mere existence of a tear in tendons, as well as a tear in a ligament, is not evidence of aserious injury in the absence of objective evidence of the extent of the alleged physicallimitations resulting from the injury and its duration (see Little v Locoh, 71 AD3d 837 [2010]; Ciancio v Nolan, 65 AD3d 1273,1274 [2009]; Niles v Lam PakieHo, 61 AD3d 657 [2009]; Sealy v Riteway-1, Inc., 54 AD3d 1018, 1019 [2008]; Kilakos v Mascera, 53 AD3d 527,528-529 [2008]; Cornelius v CintasCorp., 50 AD3d 1085, 1087 [2008]). Such evidence was clearly lacking here. Rivera,J.P., Florio, Dickerson, Chambers and Lott, JJ., concur.