| Lewars v Transit Facility Mgt. Corp. |
| 2011 NY Slip Op 04427 [84 AD3d 1176] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Verna D. Lewars et al., Respondents, v Transit FacilityManagement Corp. et al., Appellants, and Dusko Genic, Respondent. |
—[*1] Rubenstein & Rynecki, Brooklyn, N.Y. (Kliopatra Vrontos of counsel), forplaintiffs-respondents.
In an action to recover damages for personal injuries, etc., the defendants Transit FacilityManagement Corp. and Gilbert Torres, Jr., appeal, as limited by their brief, from so much of anorder of the Supreme Court, Kings County (Bayne, J.), dated June 25, 2010, as denied theirmotion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them on the ground that they were not at fault in the happening of the subject accident,and denied their separate motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them on the ground that the plaintiff Verna D. Lewars did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable to the appellants, the appellant's motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against them on the ground that the plaintiff Verna D.Lewars did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) isgranted, the appellants' separate motion for summary judgment dismissing the complaint andcross claims insofar as asserted against them on the ground that they were not at fault in thehappening of the subject accident is denied as academic, and, upon searching the record,summary judgment is awarded to the defendant Dusko Genic dismissing the complaint and allcross claims insofar as asserted against him.
In support of their motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them on the ground that the plaintiff Verna D. Lewars(hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d), the defendants Transit Facility Management Corp. and Gilbert Torres, Jr.(hereinafter the appellants), met their prima facie burden of showing that the injured plaintiff didnot sustain a serious injury under any of the claimed provisions of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]).[*2]
In opposition, the plaintiffs failed to raise a triable issueof fact. Most importantly, the affirmation and annexed submissions of Dr. Jean Claude Compas,the injured plaintiff's treating physician, did not make any findings that were sufficientlycontemporaneous with the subject accident as to the existence of significant limitations in eitherthe plaintiff's cervical or lumbar range of motion. Indeed, while Dr. Compas examined theinjured plaintiff the day after the accident, he failed to quantify any lumbar or cervical spinerange of motion as of that date (see Perl v Meher, 74 AD3d 930, 931 [2010]). Rather, heasserted merely that the injured plaintiff had "decreased" range of motion. Even with respect tothis unquantified finding, he did not set forth the objective testing he performed (see Resek vMorreale, 74 AD3d 1043, 1044 [2010]). The earliest quantified findings concerning lumbaror cervical range of motion provided by the plaintiffs was from an examination performed sixmonths after the subject accident. These findings were not sufficiently contemporaneous with thesubject accident and did not overcome the deficiencies in Dr. Compas's earlier examination(id.; see Mancini v Lali NY, Inc., 77 AD3d 797, 798 [2010]; Catalano vKopmann, 73 AD3d 963, 964 [2010]).
Contrary to the plaintiffs' contentions, the appellants also established prima facie that theinjured plaintiff did not sustain a serious injury under the 90/180 category of Insurance Law§ 5102 (d). By submitting the injured plaintiff's own deposition testimony in support of themotion, the appellants established that, at most, she missed one week of work as a result of thesubject accident. In opposition, the plaintiffs failed to raise a triable issue of fact as to thiscategory of Insurance Law § 5102 (d) as well. Consequently, the Supreme Court shouldhave granted the appellants' motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them on the ground that the injured plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler,79 NY2d 955 [1992]).
In light of our determination as to serious injury, the appellants' remaining contentions areacademic.
The defendant Dusko Genic separately moved for summary judgment dismissing thecomplaint insofar as asserted against him on the ground, inter alia, that the injured plaintiff didnot sustain a serious injury under Insurance Law § 5102 (d). Although Genic did not takean appeal from the order denying his motion, this Court may search the record and awardsummary judgment to a nonappealing party with respect to an issue that was the subject of amotion before the Supreme Court (see Rovelo v Volcy, 83 AD3d 1034 [2d Dept 2011];Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712, 714 [2009]). Upon searchingthe record, we award summary judgment to Genic dismissing the complaint insofar as assertedagainst him on the ground that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) (see CPLR 3212 [b]; Rovelo v Volcy, 83 AD3d1034 [2011]; McIntosh v O'Brien, 69 AD3d 585, 588 [2010]). Dillon, J.P., Balkin, Engand Roman, JJ., concur.