| Townes v Harlem Group, Inc. |
| 2011 NY Slip Op 02063 [82 AD3d 583] |
| March 22, 2011 |
| Appellate Division, First Department |
| Victor L. Townes, Respondent, v Harlem Group, Inc., etal., Appellants, et al., Defendant. |
—[*1] Helen Dalton & Associates, P.C., Forest Hills (Natia Shalolashvili of counsel), forrespondent.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered July 9, 2010, whichdenied defendants-appellants' motion for summary judgment seeking to dismiss the complaint onthe ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law§ 5102 (d), unanimously modified, on the law, to grant the motion as to plaintiff'ssignificant limitation of use claims with respect to of his cervical spine, lumbar spine, and rightknee, and otherwise affirmed, without costs.
Supreme Court properly determined that appellants made a prima facie showing ofentitlement to summary judgment as to plaintiff's claims of "significant limitation of use" of hiscervical spine, lumbar spine, and right knee (Insurance Law § 5102 [d]). Appellantssubmitted competent and objective medical evidence that plaintiff did not suffer a loss of rangeof motion as to any of those organs or systems (see Toure v Avis Rent A Car Sys., 98NY2d 345, 350 [2002]). Appellants also submitted sufficient evidence that plaintiff's conditionswere degenerative or age-related, which shifted the burden of refuting the same to plaintiff (see Pommells v Perez, 4 NY3d566, 580 [2005]; Rodriguez vAbdallah, 51 AD3d 590, 591-592 [2008]).
Supreme Court also properly determined that appellants met their initial burden as toplaintiff's 90/180-day claim by offering the affirmed reports of a radiologist who, after examiningMRI images of plaintiff's alleged injuries taken during the relevant period, concluded that theinjuries were "only age-related degenerative changes" (Reyes v Esquilin, 54 AD3d 615, 615 [2008]). In any event, plaintiffsubmitted competent evidence that sufficiently raises a question of fact as to his 90/180-dayclaim. The affirmation of plaintiff's treating physician specifically incorporates by reference herreports of her examination conducted on September 25, 2006, two weeks after the accident, andDecember 21, 2006, over two months after the accident, both which tend to support this claim.
With respect to his alleged significant limitation of use claims, plaintiff failed to raise an[*2]issue of fact (see Wadford v Gruz, 35 AD3d 258, 258 [2006]). While plaintiff'streating physician thoroughly conducted and aptly explained the objective testing methodsemployed for each of plaintiff's three injured body parts in properly affirmed reports based on anexamination conducted within weeks of the accident (see Dufel v Green, 84 NY2d 795,798 [1995]; Engles v Claude, 39AD3d 357 [2007]), plaintiff has failed to submit any proof of a recent medical examinationshowing a loss of range of motion in his cervical spine, lumbar spine, and right knee (see Antonio v Gear Trans Corp., 65AD3d 869 [2009]; Thompson vAbbasi, 15 AD3d 95, 97 [2005]).
We have considered appellants' remaining contentions, and find them unpersuasive.Concur—Tom, J.P., Andrias, Sweeny, Moskowitz and Renwick, JJ.