| Jackson v Delossantos-Diaz |
| 2011 NY Slip Op 01717 [82 AD3d 489] |
| March 8, 2011 |
| Appellate Division, First Department |
| Chantel S. Jackson, Respondent, v J. Delossantos-Diaz,Appellant. |
—[*1] Law Offices of Morton J. Sealove, New York (Morton J. Sealove of counsel), forrespondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered July 6, 2010, whichdenied defendant's motion for summary judgment dismissing the complaint, unanimouslymodified, on the law, the motion granted as to the 90/180-day category of Insurance Law §5102 (d) and the fracture, and otherwise affirmed, without costs.
Defendant failed to meet his initial burden to show that no triable issue of fact exists as towhether plaintiff sustained a significant limitation within the meaning of Insurance Law §5102 (d). The report by defendant's orthopedic expert, based on a recent examination, foundlimitations in range of motion in plaintiff's left shoulder but failed to set forth objective findingsas to whether the limitations were significant or caused by the subject accident (see Shaw v Looking Glass Assoc., LP,8 AD3d 100, 103 [2004]).
However, defendant met his initial burden to show that no triable issue of fact exists as towhether the accident caused plaintiff's alleged fracture. Defendant's radiology expert affirmedthat any bone abnormality was caused by a preexisting degenerative condition (see Bray v Rosas, 29 AD3d 422,424 [2006]). Plaintiff failed to meet her burden to present any evidence raising a triable issue offact as to the cause of the fracture. Although she presented a report by the radiologist whoconducted the MRI and who concluded that plaintiff had a fracture in her left shoulder, thisreport was silent as to the cause of the fracture (see id.).
Finally, defendant met his initial burden to show that plaintiff submitted no objectiveevidence establishing that she was unable to engage in any of her usual activities at any pointduring the 180 days immediately following the accident. Plaintiff submitted only self-serving[*2]testimony, which does not suffice to raise a triable issue offact concerning whether she met the threshold requirement for the 90/180-day category (seeNelson v Distant, 308 AD2d 338, 339 [2003]). Concur—Andrias, J.P., Catterson,Moskowitz, Abdus-Salaam and RomÁn, JJ.