|Santos v Traylor-Pagan|
|2017 NY Slip Op 05502 [152 AD3d 406]|
|July 6, 2017|
|Appellate Division, First Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
| Jorge D. Santos, Jr., Respondent,|
Shona Traylor-Pagan, Appellant.
Katz & Associates, Brooklyn (Stephen A. Saltzman of counsel), for appellant.
John C. Lévy, New York, for respondent.
Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered February 4, 2016, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate that he suffered a serious injury within the meaning of Insurance Law § 5102 (d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendant established her entitlement to judgment as a matter of law by submitting the affirmed report of an orthopedist who found normal ranges of motion in the affected body parts i.e., the right elbow and wrist (see e.g. Torres v Triboro Servs., Inc., 83 AD3d 563, 563-564 [1st Dept 2011]). Defendant was not required to submit the report of an expert neurologist as to plaintiff's claim of carpal tunnel syndrome in his right wrist, since it was not pleaded in the bill of particulars and was raised for the first time in opposition to the motion (see Boone v Elizabeth Taxi, Inc., 120 AD3d 1143, 1144 [1st Dept 2014]). In any event, defendant's orthopedist found normal ranges of motion in plaintiff's right wrist and elbow, no atrophy in the muscles of the hand, and that Phalen's sign was negative (see Jacobs v Slaght, 47 AD3d 679 [2d Dept 2008]; see also Kendig v Kendig, 115 AD3d 438, 439 [1st Dept 2014]).
Plaintiff failed to raise a triable issue of fact as to whether his carpal tunnel syndrome was
causally related to the accident (Perl v
Meher, 18 NY3d 208, 217-218 ). This Court, in Rosa v Mejia (95 AD3d 402, 404
[1st Dept 2012]), opined that the decision in Perl did not abrogate the need for at least a
qualitative assessment of injuries soon after an accident. This Court then affirmed the dismissal
of a plaintiff's case where the plaintiff had presented no admissible proof that she saw any
medical provider for any evaluation until 5
Plaintiff's remaining arguments are unavailing. Concur—Tom, J.P., Moskowitz, Gische and Kapnick, JJ.