| Rosa-Diaz v Maria Auto Corp. |
| 2010 NY Slip Op 08995 [79 AD3d 463] |
| December 7, 2010 |
| Appellate Division, First Department |
| Maria Rosa-Diaz, Appellant, v Maria Auto Corp., Respondent,et al., Defendants. |
—[*1] Baker, McEvoy, Morrissey & Moskovitz, P.C., New York (Stacy R. Seldin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about July22, 2009, which, in this action seeking damages for personal injuries purportedly suffered by apedestrian as the result of being struck by a metal object thrust up by a motor vehicle, granteddefendants' motion for summary judgment dismissing the complaint on the ground of lack of seriousinjury pursuant to Insurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants satisfied their initial burden of establishing, prima facie, the absence of any triablequestions of fact so as to entitle them to judgment as a matter of law (see Smalls v AJI Indus., Inc., 10 NY3d733, 735 [2008]) by submitting the affirmed reports of a neurologist and orthopedic surgeon,supported by specific tests that had been performed upon plaintiff, that the subject incident did notcause her to suffer a serious injury within the contemplation of Insurance Law § 5102 (d) in theform of a permanent consequential limitation of a body organ or a significant limitation of use of a bodyfunction or system (see Zhijian Yang vAlston, 73 AD3d 562, 563 [2010]; Santiago v Bhuiyan, 71 AD3d 485 [2010]). Moreover, notwithstandingthat the orthopedic surgeon did discern a minor deficit in a single aspect of plaintiff's lumbar motion, thisslight limitation was insignificant for purposes of Insurance Law § 5102 (d) (see Cruz v Lugo, 67 AD3d 495, 496[2009]; Eichinger v Jone Cab Corp., 55AD3d 364 [2008]). Although plaintiff also argues that the failure of defendants' doctors to reviewher medical records mandated the denial of summary judgment, a prima facie showing of the absence oftriable questions of fact does not require such a review as a condition for a grant of summary judgment(see Clemmer v Drah Cab Corp., 74AD3d 660, 660-661 [2010]; DeJesus vPaulino, 61 AD3d 605, 607 [2009]).
In opposition, plaintiff failed to raise a triable issue of fact. It is significant that plaintiff has admittedthat she was involved in three other accidents in addition to the one at issue, two of which happenedbefore the subject event, the third having occurred in September 2006, but plaintiff's chiropractortotally ignored any effect of those accidents on the purported symptoms [*2]attributable to the one herein. Yet, "even where there is objective medicalproof of an injury, summary dismissal of a serious injury claim may be appropriate when additionalcontributory factors, such as preexisting conditions, interrupt the chain of causation between theaccident and the claimed injury" (Farrington vGo On Time Car Serv., 76 AD3d 818, 818 [2010]; see also Pommells v Perez, 4 NY3d 566, 572 [2005]).
As for the 90/180-day category of serious injury, it is axiomatic that an individual's unsupportedsubjective claim of continuing pain and the inability to work for more than 90 days is not dispositive ofthe existence of a 90/180 category injury. In order to raise a question of fact there must be someobjective proof, not here presented, substantiating the existence of such an injury (see Nieves v Castillo, 74 AD3d 535[2010]; Weinberg v Okapi Taxi, Inc., 73AD3d 439 [2010]). Consequently, "the reference to plaintiffs' proof and deposition testimonysufficiently refuted the 90/180-day allegation of serious injury" (DeJesus at 607).Concur—Mazzarelli, J.P., Acosta, Richter, Abdus-Salaam and RomÁn, JJ.