| Griffiths v Munoz |
| 2012 NY Slip Op 06190 [98 AD3d 997] |
| September 19, 2012 |
| Appellate Division, Second Department |
| Ancil Griffiths, Respondent, et al., Plaintiff, v Alex Munozet al., Appellants. |
—[*1] Marjorie E. Bornes, New York, N.Y., for appellants Mohamed Namous and FollowmeTransit, Inc. Paul Ajlouny & Associates, P.C., Garden City, N.Y. (Neil Flynn of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Alex Munoz and BrielleVodovoz appeal, and the defendants Mohamed Namous and Followme Transit, Inc., separatelyappeal, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), datedSeptember 27, 2011, as denied those branches of their respective motions which were forsummary judgment dismissing the complaint insofar as asserted against each of them by theplaintiff Ancil Griffiths on the ground that he did not sustain a serious injury within the meaningof Insurance Law § 5102 (d) as a result of the subject accident.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and those branches of the defendants' respective motions which were for summary judgmentdismissing the complaint insofar as asserted against each of them by the plaintiff Ancil Griffithsare granted.
The defendants met their prima facie burden of showing that the plaintiff Ancil Griffiths(hereinafter the injured plaintiff), who allegedly sustained certain injuries to the cervical andlumbar regions of his spine, as well as to his right knee, as a result of the subject accident, did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). The defendants submitted evidence establishing thatthe alleged injuries to the cervical and lumbar regions of the injured plaintiff's spine and his rightknee did not constitute a serious injury under the permanent consequential limitation of use andthe significant limitation of use categories of Insurance Law § 5102 (d) (see Staff v Yshua, 59 AD3d 614[2009]; Rodriguez v Huerfano, 46AD3d 794, 795 [2007]). The defendants also established that the injured plaintiff did notsustain a medically determined injury or impairment that prevented him from performingsubstantially all of the material acts constituting his customary daily activities during at least 90of the first 180 days following the subject accident (see McIntosh v O'Brien, 69 AD3d 585, 586 [2010]).
In opposition, the injured plaintiff failed to raise a triable issue of fact as to whether thealleged injuries to the cervical and lumbar regions of his spine constituted a serious injury underthe permanent consequential limitation of use category of Insurance Law § 5102 (d), as hedid not offer any objective medical findings from a recent examination of those regions of hisspine (see [*2]Lively v Fernandez, 85 AD3d 981 [2011]). Moreover,"while a significant limitation of use of a body function or member need not be permanent inorder to constitute a 'serious injury,' . . . any assessment of the 'significance' of abodily limitation necessarily requires consideration not only of the extent or degree of limitation,but of its duration as well, notwithstanding the fact that Insurance Law § 5102 (d) does notexpressly set forth any temporal requirement for a 'significant limitation' " (id. at 982,quoting Partlow v Meehan, 155 AD2d 647, 648 [1989] [some internal quotation marksand citation omitted]). Here, in opposition to the defendants' prima facie showing that the injuredplaintiff did not sustain a "significant limitation" of use of the cervical or lumbar regions of hisspine, the injured plaintiff relied solely on records of three medical examinations, all of whichwere conducted shortly after the accident. These records were insufficient to raise a triable issueof fact as to whether the alleged limitations in the range of motion of the cervical and lumbarregions of the injured plaintiff's spine existed for a sufficient period of time to rise to the level of"significance" and, thus, whether the injured plaintiff sustained a significant limitation of use of abody function or system (see Lively v Fernandez, 85 AD3d at 982).
The injured plaintiff also failed to raise a triable issue of fact as to whether the alleged injuryto his right knee was caused by the subject accident, as he did not seek medical treatment for hisright knee for approximately 10 months after the accident. "[A] contemporaneous doctor's reportis important to proof of causation" (Perlv Meher, 18 NY3d 208, 217-218 [2011] [emphasis deleted]). The absence of acontemporaneous medical report invites speculation as to causation. The plaintiff also failed toraise a triable issue of fact as to whether he sustained a serious injury under the 90/180-daycategory of Insurance Law § 5102 (d) (see McIntosh v O'Brien, 69 AD3d at 587).
Accordingly, those branches of the defendants' respective motions which were for summaryjudgment dismissing the complaint insofar as asserted against each of them by the injuredplaintiff should have been granted. Dillon, J.P., Balkin, Belen and Austin, JJ., concur.