| Mancini v Lali NY, Inc. |
| 2010 NY Slip Op 07516 [77 AD3d 797] |
| October 19, 2010 |
| Appellate Division, Second Department |
| Gregg A. Mancini, Respondent, v Lali NY, Inc., et al.,Appellants. |
—[*1] Katz & Kreinces, LLP, Mineola, N.Y. (Lawrence K. Katz of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (Galasso, J.), dated April 12, 2010, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
On August 1, 2006, the plaintiff was operating his vehicle when it collided with a vehicleowned by the defendant Lali NY, Inc., and operated by the defendant Yechiel Zeiri. As a result ofthe subject accident, the plaintiff commenced this action to recover damages for his personalinjuries, including an alleged disc herniation in the cervical region of his spine and a left shoulderrotator cuff impingement.
Following the completion of discovery, the defendants moved for summary judgmentdismissing the complaint on the ground that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) as a result of the subject accident. The SupremeCourt denied the motion. We reverse.
In opposition to the defendants' prima facie showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis RentA Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Clark v Perry, 21 AD3d 1373,1374 [2005]), the plaintiff failed to raise a triable issue of fact. Although the plaintiff providedcompetent medical evidence of his current disc herniation and range-of-motion limitations, hefailed to provide an evaluation of his treating physician, Dr. Brian Goldberg, identifying, interalia, the objective tests utilized during an examination performed in August 2006, which wascontemporaneous with the accident, and "compar[ing] the plaintiff's limitations to the normalfunction, purpose and use of the affected body organ, member, function or system" (Toure vAvis Rent A Car Sys., 98 NY2d at 350; see Euvino v Rauchbauer, 71 AD3d 820 [2010]; Perdomo v Scott, 50 AD3d 1115,1116 [2008]; D'Onofrio v [*2]Floton, Inc., 45 AD3d 525 [2007]). The medical findingsmade by Dr. Jean Futoran four months after the accident, in December 2006, could not overcomethe deficiencies in Dr. Goldberg's August 2006 evaluation (see Perl v Meher, 74 AD3d 930, 932 [2010]; see also Resek v Morreale, 74 AD3d1043 [2010]; Kublo vRzadkowski, 71 AD3d 831 [2010]; Collado v Satellite Solutions & Electronics of WNY, LLC, 56 AD3d411 [2008]). Dillon, J.P., Balkin, Chambers and Sgroi, JJ., concur.