| Madera v Gressey |
| 2011 NY Slip Op 03719 [84 AD3d 460] |
| May 5, 2011 |
| Appellate Division, First Department |
| Gladys Madera, Appellant, v Heidi A. Gressey et al.,Respondents, et al., Defendant. |
—[*1] Law Office of Steven I. Lubowitz, Scarsdale (Susan I. Lubowitz of counsel), for Heidi A.Gressey, respondent. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forDavid Perez, respondent. Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck (Elizabeth M. Hecht of counsel), forJuan Cerda, respondent.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 29, 2009,which granted the motion of defendant David Perez, and the cross motions of defendants JuanCerda and Heidi Gressey, for summary judgment dismissing plaintiff's complaint based on thefailure to establish a serious injury under Insurance Law § 5102, unanimously affirmed,without costs.
Defendants established their entitlement to judgment as a matter of law. Defendantssubmitted, inter alia, the affirmed reports of a neurologist, a radiologist and an orthopedist, who,based upon examinations of plaintiff and her medical records, all concluded that plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
In opposition, plaintiff failed to raise a triable issue of fact. There was no objective medicalproof of injury to the lumbar spine and right shoulder. Notwithstanding the arguably positiveMRI report for the cervical spine, there were no objective findings to demonstrate any initialrange-of-motion restrictions on plaintiff's cervical and lumbar spine or her shoulder, or anyexplanation for their omission (seeThompson v Abbasi, 15 AD3d 95, 98 [2005]). Plaintiff provided conflictingexplanations for the four-year cessation of treatment.
Plaintiff's serious injury claim based on an alleged inability to engage in substantially all herdaily activities for 90 of the first 180 days post-accident was refuted by her own testimony andbill of particulars. Plaintiff testified that she was only confined to bed for four days, and her [*2]bill of particulars alleged "several days" of confinement (see Williams v Baldor Specialty Foods,Inc., 70 AD3d 522 [2010]). Plaintiff further testified that she was thereafter capable ofdoing all of her "things." Concur—Andrias, J.P., Sweeny, Catterson, Renwick andManzanet-Daniels, JJ.