| Anderson v Zapata |
| 2011 NY Slip Op 07170 [88 AD3d 504] |
| October 13, 2011 |
| Appellate Division, First Department |
| Rebecca Anderson et al., Respondents, v Sergio Zapata,Appellant. |
—[*1] Law Offices of Eric H. Green and Associates, New York (Hiram A. Raldiris of counsel), forrespondents.
Order, Supreme Court, Bronx County (George J. Silver, J.), entered December 7, 2010,which denied defendant's motion for summary judgment dismissing the complaint on the groundthat plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk isdirected to enter judgment in defendant's favor dismissing the complaint.
Defendant's orthopedist found no limitations of motion regarding plaintiff RebeccaAnderson. Although defendant's neurologist found that she had limitations in 2010, there is noobjective evidence to support a cervical injury (see Toure v Avis Rent A Car Sys., 98NY2d 345, 353 [2002]). Any alleged injuries to her knees were shown to be the result of apreexisting degenerative condition, which was confirmed, rather than refuted, by her radiologist(see Valentin v Pomilla, 59 AD3d184 [2009]). Moreover, the failure to perform any range of motion testing contemporaneouswith the accident eight years earlier renders any attempt to connect her present day injuries to the2002 accident speculative (see Batts vMedical Express Ambulance Corp., 49 AD3d 294, 295 [2008]).
Defendant satisfied his initial burden of establishing, prima facie, the absence of any triablequestions of fact so as to entitle him to judgment as a matter of law as to plaintiffs Strawberryand Mychal Isaac by submitting the affirmed reports of an orthopedic surgeon and a neurologist(see DeJesus v Paulino, 61 AD3d605 [2009]). The differences between the standards for normal ranges of motion cited bydefendant's orthopedic and neurologic reports are not significant. Both doctors concluded thatplaintiffs Strawberry and Mychal Isaac had normal ranges of motion, and the minor differencesin what they regarded as normal ranges do not affect [*2]defendant's entitlement to summary judgment (see Feliz v Fragosa, 85 AD3d 417[2011]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Gonzalez, P.J., Andrias, Saxe and Sweeny, JJ.