| Lively v Fernandez |
| 2011 NY Slip Op 05461 [85 AD3d 981] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Emily Lively et al., Appellants, v Natalie Fernandez,Respondent. |
—[*1] Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Siegal, J.), enteredNovember 9, 2009, as granted that branch of the defendant's cross motion which was forsummary judgment dismissing the complaint insofar as asserted by the plaintiff Michael Livelyon the ground that he did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the appeal by the plaintiff Emily Lively is dismissed, as she is not aggrieved bythe portion of the order appealed from (see CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as appealed from by the plaintiff Michael Lively;and it is further,
Ordered that one bill of costs is awarded to the defendant.
The defendant met her prima facie burden of showing that the plaintiff Michael Lively(hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The limitation notedin the range of motion of the plaintiff's cervical spine during the examination conducted by thedefendant's examining neurologist was insignificant within the meaning of Insurance Law§ 5102 (d) (see Licari v Elliott, 57 NY2d 230 [1982]; see also Casco v Cocchiola, 62 AD3d640 [2009]; Waldman v Dong Kook Chang, 175 AD2d 204 [1991]).
In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of theplaintiff's treating physician, Dr. Mitchell Goldstein, failed to raise a triable issue of fact as towhether the plaintiff sustained a serious injury under the permanent consequential limitation ofuse category of Insurance Law § 5102 (d) since Dr. Goldstein failed to set forth anyobjective medical findings from a recent examination (see Jean v Labin-Natochenny, 77 AD3d 623 [2010]; Clarke v Delacruz, 73 AD3d 965[2010]; Kin Chong Ku vBaldwin-Bell, 61 AD3d 938 [2009]; Diaz v Lopresti, 57 AD3d 832, 832-833 [2008]; Soriano v Darrell, 55 AD3d 900,900-901 [2008]; Diaz v Wiggins, 271 AD2d 639, 640 [2000]; Kauderer v Penta,261 AD2d 365, 366 [1999]; Marin v Kakivelis, 251 AD2d 462, 463 [1998]).[*2]
Moreover, while a significant limitation of use of a bodyfunction or member "need not be permanent in order to constitute a 'serious injury,'. . . any assessment of the 'significance' of a bodily limitation necessarily requiresconsideration not only of the extent or degree of the limitation, but of its duration as well"(Partlow v Meehan, 155 AD2d 647, 647-648 [1989]), notwithstanding the fact thatInsurance Law § 5102 (d) "does not expressly set forth any temporal requirement for a'significant limitation' " (id. at 648). Here, Dr. Goldstein's affirmation, in which he opinedthat the plaintiff sustained significant limitations of motion in the cervical and lumbar regions ofhis spine, is based on only one examination of the plaintiff, conducted shortly after the accident.Under these circumstances, where Dr. Goldstein failed to establish that he examined the plaintiffafter that one examination, his affirmation was insufficient to raise a triable issue of fact as towhether these limitations existed for a sufficient period of time to rise to the level of"significance" and, thus, whether the plaintiff sustained a significant limitation of use of a bodyfunction or member.
The magnetic resonance imaging reports of Dr. Robert Diamond were insufficient to raise atriable issue of fact since they were unaffirmed and, thus, in inadmissible form (see Grasso vAngerami, 79 NY2d 813 [1991]; Pierson v Edwards, 77 AD3d 642 [2010]; Vasquez v John Doe #1, 73 AD3d1033 [2010]).
Furthermore, the plaintiff failed to adequately explain the cessation of his treatment after2007 (see Pommells v Perez, 4NY3d 566, 574 [2005]; Vasquez v John Doe #1, 73 AD3d at 1034; Haber v Ullah, 69 AD3d 796[2010]).
Lastly, the plaintiff failed to raise a triable issue of fact as to whether his injuries preventedhim from performing substantially all of his usual and customary daily activities during at least90 of the first 180 days following the subject accident (see McLoud v Reyes, 82 AD3d 848 [2011]; Roman v Fast Lane Car Serv., Inc., 46AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). Skelos, J.P., Covello,Balkin and Austin, JJ., concur.