| Paveljack v Cirino |
| 2012 NY Slip Op 02191 [93 AD3d 1286] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| Amelia L. Paveljack, Respondent-Appellant, v David P. Cirino,Appellant-Respondent. |
—[*1] Hogan Willig, Getzville (John B. Licata of counsel), forplaintiff-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Niagara County (Richard C.Kloch, Sr., A.J.), entered March 23, 2011 in a personal injury action. The order granted in partand denied in part the motion of defendant for summary judgment and denied the cross motion ofplaintiff for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in its entirety and dismissing the complaint and as modified the order isaffirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained when a vehicle driven by defendant ran a red light and struck the front driver's side of avehicle driven by plaintiff. According to plaintiff, she sustained a serious injury under fourcategories set forth in Insurance Law § 5102 (d), i.e., permanent loss of use, permanentconsequential limitation of use, significant limitation of use and the 90/180-day category.Defendant moved for summary judgment dismissing the complaint on the ground that plaintiffdid not sustain a serious injury under any of those categories, and plaintiff cross-moved forpartial summary judgment on liability and on the ground that she sustained a serious injury to hercervical spine. Supreme Court granted that part of defendant's motion for summary judgmentwith respect to the permanent loss of use and 90/180-day categories, but determined that therewere triable issues of fact with respect to the permanent consequential limitation of use andsignificant limitation of use categories. The court denied plaintiff's cross motion in its entirety.Defendant appeals, and plaintiff cross-appeals.
We agree with the court that defendant met his initial burden of demonstrating that plaintiffdid not sustain a serious physical injury under the four categories set forth in Insurance Law§ 5102 (d) and that plaintiff failed to raise an issue of fact with respect to the permanentloss of use and 90/180-day categories. We further conclude, however, that plaintiff also failed tosubmit the requisite objective proof of injury to raise an issue of fact with respect to the tworemaining categories, and we therefore modify the order by granting defendant's motion in its[*2]entirety. The records of plaintiff's own treating physician andphysical therapist establish that any complaints that plaintiff had immediately following theaccident had fully resolved within approximately 1½ months. Although an MRI latershowed a slight disc herniation in plaintiff's neck, that MRI was not performed until six monthsafter the accident.
Similarly, while plaintiff had renewed complaints of pain with accompanying loss of range ofmotion in her cervical spine approximately four months after the accident, she offered noexplanation for the cessation of her symptoms and absence of treatment therefor with respect tothe gap of approximately 2½ months following the initial full resolution of her complaints(see generally Pommells v Perez, 4NY3d 566, 572 [2005]; McCarthy vBellamy, 39 AD3d 1166, 1166-1167 [2007]). Moreover, although evidence of a discherniation combined with objective proof of limitation of range of motion may be sufficient toraise an issue of fact with respect to serious injury (see e.g. Ellithorpe v Marion [appealNo. 2], 34 AD3d 1195, 1196-1197 [2006]; Ejzerman v Cruz, 309 AD2d 893 [2003]), therecords upon which plaintiff relies fail to "recite the tests used to ascertain the degree ofplaintiff's loss of range of motion" (Weaver v Town of Penfield, 68 AD3d 1782, 1785 [2009]).Present—Scudder, P.J., Centra, Peradotto, Lindley and Martoche, JJ.