| Browne v Covington |
| 2011 NY Slip Op 01521 [82 AD3d 406] |
| March 1, 2011 |
| Appellate Division, First Department |
| Deloris Browne et al., Plaintiffs, and Lavern Browne,Respondent, v Joseph A. Covington, Appellant. |
—[*1] Seth D. Zukoff, New York (John Evans Bos of counsel), for respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or aboutJuly 15, 2010, which, insofar as appealed from, denied defendant's cross motion for summaryjudgment dismissing the third cause of action on the ground that plaintiff Lavern Browne did notsuffer a serious injury within the meaning of Insurance Law § 5102 (d), unanimouslymodified, on the law, to grant the cross motion as to plaintiff Lavern Browne's 90/180-day claim,and otherwise affirmed, without costs.
Supreme Court properly determined that Lavern Browne raised an issue of fact with respectto whether she suffered a serious injury insofar as the claims are premised upon her "permanentconsequential limitation of use" and "significant limitation of use" of her spine, right shoulder,and left ankle (Insurance Law § 5102 [d]).
That portion of defendant's argument premised upon the alleged gap in Lavern Browne'streatment with Dr. Opam is unpreserved and, additionally, unavailing (see Byong Yol Yi v Canela, 70 AD3d584, 585 [2010]). The fact that the same physician also examined her in January 2010 doesnot, as defendant contends, constitute an unexplained gap in treatment which somehow vitiatesthe probative value of the physician's affirmation. The record demonstrates that "the so-calledgap in treatment was, in reality, a cessation" of that doctor's treatment, not all treatment (Pommells v Perez, 4 NY3d 566,574 [2005]). Even a "cessation of all treatment" would not necessarily be dispositive, and, in anyevent, Browne offered a sufficient explanation in her affidavit in opposition to defendant's crossmotion—her no-fault benefits were denied (id.; see Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 492 [2010]; Delorbe v Perez, 59 AD3d 491,492 [2009]).
Defendant's argument that the treating physician's handwritten reports have no probativevalue because they did not "compare the reported degrees of loss of range of motion to normalvalues" has been raised for the first time on appeal and, therefore, is unpreserved for review (see Alicea v Troy Trans, Inc., 60 AD3d521, 521-522 [2009]). Regardless, it is unpersuasive because the physician's affirmation,which Browne submitted in opposition to defendant's cross motion, [*2]clearly sets forth the normal ranges of motion for each and everyallegedly injured body part and "ascribe[s] a specific percentage to the loss of range of motion" ineach of those parts (Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]). Thiscomparison is sufficient to raise a question of fact regarding Browne's loss of range of motion forthe purposes of her "permanent consequential limitation of use" and "significant limitation ofuse" claims (Insurance Law § 5102 [d]).
However, defendant made a prima facie showing that Lavern Browne was not preventedfrom performing substantially all of her customary and daily activities for 90 of the 180 daysimmediately following the accident by submitting the affirmed report of an examinationconducted approximately two months after the accident. Lavern Browne's subjective complaintsfail to raise a material issue of fact and, to the extent that her doctor's affirmation purports toaddress the 90/180-day claim, it merely offers an unavailing conclusory recitation of the statutorylanguage (see Rosa-Diaz v Maria AutoCorp., 79 AD3d 463, 463 [2010]; Ortiz v Ash Leasing, Inc., 63 AD3d 556, 557 [2009]).Concur—Gonzalez, P.J., Tom, Andrias, Renwick and Abdus-Salaam, JJ.