| Vega v MTA Bus Co. |
| 2012 NY Slip Op 04681 [96 AD3d 506] |
| June 12, 2012 |
| Appellate Division, First Department |
| Melissa Vega, Respondent, v MTA Bus Company et al.,Appellants. |
—[*1] Mallilo & Grossman, Flushing (Francesco Pomara, Jr. of counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered October 11, 2011,which, to the extent appealed from as limited by the briefs, denied defendants' motion forsummary judgment dismissing the complaint based on the grounds of lack of negligence andfailure to establish a serious injury under the permanent loss, permanent consequential andsignificant limitation categories of Insurance Law § 5102 (d), unanimously reversed, onthe law, without costs, and the motion granted. The Clerk is directed to enter judgmentdismissing the complaint.
Defendants made a prima facie showing that defendant bus driver acted reasonably in anemergency situation not of his own making and thus was not negligent (see Caristo vSanzone, 96 NY2d 172, 174 [2001]; Rahimi v Manhattan & Bronx Surface Tr. Operating Auth., 43 AD3d802, 803 [2007]). Indeed, the bus driver testified that the bus was crossing an intersectionwhen a car, traveling in the opposite direction, crossed over the double yellow lines and cut infront of the bus in order to make a left turn, forcing the bus driver to apply the brakes. Plaintiff'stestimony that the bus driver was "speeding" was insufficient to raise a triable issue of fact (see Alston v American Tr., Inc., 82AD3d 546, 547 [2011]).
Defendants also made a prima facie showing that plaintiff did not suffer a serious injurywithin the meaning of Insurance Law § 5102 (d) by submitting expert medical reportsfinding normal ranges of motion in the claimed affected body parts and no objective evidencethat any limitations resulted from the accident (see Spencer v Golden Eagle, Inc., 82 AD3d 589, 590 [2011]). Thefinding of a minor limitation in plaintiff's lumbar spine by one of defendants' physicians was"insignificant for purposes of Insurance Law § 5102 (d)" (Rosa-Diaz v Maria Auto Corp., 79AD3d 463, 464 [2010]). In opposition, plaintiff failed to raise a triable issue of fact, sinceshe did not submit any objective evidence of limitations based on a recent examination of any ofthe subject body parts (see Shu Chi Lamv Wang Dong, 84 AD3d 515, 516 [2011]; Townes v Harlem Group, Inc., 82 AD3d 583, 584 [2011]). Themost current medical evidence upon which plaintiff relied was the affirmed report of one of hertreating physicians, outlining treatment she received in 2007, nearly three years beforedefendants' experts' findings of full range of motion (see Zambrana v Timothy, 95 AD3d 422 [2012]).Concur—Saxe, J.P., Catterson, Acosta, DeGrasse and Richter, JJ.