| Williams v Horman |
| 2012 NY Slip Op 03886 [95 AD3d 650] |
| May 17, 2012 |
| Appellate Division, First Department |
| Leticia Williams, Appellant, v Erik J. Horman et al.,Respondents. |
—[*1] Epstein, Gialleonardo & Rayhill, Elmsford (Daniel F. Genovese of counsel), for Erik J.Horman, respondent. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forDjiby Sy and Sunrise Limo Enterprise, respondents.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered May 4, 2011, whichgranted the motion of defendants Djiby Sy and Sunrise Limo Enterprise for summary judgmentdismissing the complaint as against them, unanimously modified, on the law, to dismiss thecomplaint as against all defendants, and otherwise affirmed, without costs. The Clerk is directedto enter judgment accordingly.
The moving defendants (defendants) established their entitlement to judgment as a matter oflaw by showing that plaintiff did not sustain permanent consequential or significant limitations toher cervical spine and right shoulder. Defendants submitted the affirmed report of an orthopedicsurgeon, who, based upon an examination of plaintiff and a review of her medical records,concluded that plaintiff had fully recovered from a mild sprain of the cervical spine and that theinjury to her right shoulder was due to a preexisting condition. Defendants also submitted theaffirmed report of a radiologist who reviewed the MRIs of plaintiff's cervical spine and rightshoulder, and found preexisting and degenerative conditions and no indication of traumatic injury(see Migliaccio v Miruku, 56 AD3d393, 394 [2008]).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's treating orthopedistexamined her three months after the accident, and found normal range of motion, and subsequentconflicting findings of limitations in the cervical spine by another physician were not explained(see Jno-Baptiste v Buckley, 82AD3d 578 [2011]). Plaintiff also failed to submit any recent report contradicting the findingsof defendants' orthopedic surgeon that her cervical sprain had completely resolved (see Feliz v Fragosa, 85 AD3d 417,418 [2011]), and offered no medical evidence refuting the findings of defendants' experts that hercervical spine condition was attributable to preexisting conditions unrelated to trauma (see Lazu v Harlem Group, Inc., 89AD3d 435 [2011]).
Regarding her right shoulder injury, plaintiff's orthopedic surgeon opined that the rotator cufftear was directly related to the accident, but did not quantify any limitations in range of [*2]motion either before or after he performed surgery to repair the tear,and found only an unquantified "mild limitation of range of motion" upon recent examinationfollowing a second, unrelated injury to plaintiff's shoulder. Absent any objective medicalevidence explaining or contradicting the normal findings by plaintiff's orthopedist, plaintiff failedto raise a triable issue of fact as to whether she suffered a serious injury to her shoulder followingthe accident (see Canelo v Genolg Tr.,Inc., 82 AD3d 584, 585 [2011]; see also Winters v Cruz, 90 AD3d 412 [2011]). Moreover, theexistence of a tear in a shoulder ligament and of bulging and herniated discs is not evidence ofserious injury in the absence of objective proof of the extent of the alleged physical limitationsresulting from the injury, and its duration (see DeJesus v Paulino, 61 AD3d 605, 608 [2009]).
Defendants established their entitlement to summary judgment dismissing the 90/180-dayclaim based upon, inter alia, plaintiff's deposition testimony that she stayed home only for threedays after the accident, and plaintiff failed to raise an issue of fact in opposition (see Lopez v Abdul-Wahab, 67 AD3d598, 600 [2009]).
Furthermore, although it appears that codefendant Horman did not move for summaryjudgment, dismissal of the complaint as against him is also warranted because "if plaintiff cannotmeet the threshold for serious injury against one defendant, she cannot meet it against the other"(Lopez v Simpson, 39 AD3d420, 421 [2007]). Concur—Saxe, J.P., Sweeny, Acosta, Freedman and Román,JJ.