| Levinson v Mollah |
| 2013 NY Slip Op 02831 [105 AD3d 644] |
| April 25, 2013 |
| Appellate Division, First Department |
| Jeffrey S. Levinson, Appellant, v MohiuddinMollah et al., Respondents. |
—[*1] Thomas Torto, New York (Jason Levine of counsel), for Mohiuddin Mollah andPoint West Trans Inc., respondents. Burke, Gordon & Conway, White Plains (Stephane D. Martin of counsel), forJonathon D. Morse and George Morse, respondents.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered February 23,2012, which granted defendants Mohiuddin Mollah and Point West Trans Inc.'s motionand defendant Jonathon Morse's cross motion for summary judgment dismissing thecomplaint on the ground that plaintiff did not suffer a serious injury within the meaningof Insurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants met their prima facie burden of showing that plaintiff did not sustain aserious injury to his cervical spine and lumbar spine by submitting a neurologist'saffirmation stating that, upon conducting an examination of plaintiff, she found a fullrange of motion in every plane of both body parts, and compared plaintiff's values tonormal (see Steinbergin vAli, 99 AD3d 609 [1st Dept 2012]). Contrary to plaintiff's argument,defendants' expert was not required to specifically address the diagnostic findings inplaintiff's medical records (seeRobinson v Joseph, 99 AD3d 568 [1st Dept 2012]; Fuentes v Sanchez, 91 AD3d418, 419 [1st Dept 2012]; Clemmer v Drah Cab Corp., 74 AD3d 660, 660-661 [1stDept 2010]). Plaintiffs' remaining arguments attempting to undermine that affirmationare unpreserved for review and, in any event, unpersuasive (see Feliz v Fragosa, 85 AD3d417, 418 [1st Dept 2011]).
Plaintiff failed to raise an issue of fact in opposition. The only sworn evidenceplaintiff proffered was an affidavit from his chiropractor who, following an examinationconducted shortly after the one performed by defendants' neurologist, acknowledged thatboth body parts exhibited a full range of motion in every plane, and offered noqualitative assessment of any limitations. Even if plaintiff's unaffirmed MRI reportsshowing bulging discs could be considered, his showing would be insufficient because"bulging or herniated discs are not, in and of themselves, evidence of serious injurywithout competent objective evidence of the limitations and duration of the disc injury"(Wetzel v Santana, 89AD3d 554, 554 [1st Dept 2011]). Further, findings based on subjective complaintsof pain are insufficient to raise a triable issue of fact (Arenas v Guaman, 98 AD3d 461 [1st Dept 2012]).[*2]
We need not determine whether defendantMorse's cross motion for summary judgment was timely, because once it was establishedby defendants Mollah and Point West that plaintiff did not meet the serious injurythreshold, the complaint would be dismissed as to all codefendants as well (see Britton v Villa Auto Corp.,89 AD3d 556 [1st Dept 2011]).
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Tom, J.P., Acosta, Román, Feinman and Clark, JJ.