| Morales v Colon |
| 2009 NY Slip Op 50815(U) [23 Misc 3d 135(A)] |
| Decided on April 28, 2009 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendants, as limited by their briefs, appeal from that portion of an order of the Civil Court
of the City of New York, Bronx County (Ben R. Barbato, J.), dated December 3, 2007, which,
upon reargument, denied defendants' motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Ben R. Barbato, J.), dated December 3, 2007, reversed, with $10 costs, defendants' motion for summary judgment granted, and complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendants established entitlement to summary judgment with objective medical reports sufficient to disprove plaintiff's claims of "serious injury" (Insurance Law §5102[d]), including evidence that plaintiff had recovered from sprain and strain injuries, and was not disabled. In opposition, plaintiff failed to submit objective medical proof in admissible form sufficient to demonstrate the existence of a serious injury. The affirmation of plaintiff's treating physician provides neither a quantitative nor qualitative assessment of any range-of-motion limitations at or near the time of the motor vehicle accident (see Toure v Avis Rent-A-Car Systems Inc., 98 NY2d 345 [2002]; Toulson v Young Han Pae, 13 AD3d 317 [2004]). Nor did plaintiff's doctor describe the tests used to pinpoint the spasms and trigger points he reported (see Shaw v Looking Glass Assoc., 8 AD3d 100 [2004]).
The necessary showing that plaintiff did not sustain a serious injury in the 90/180-day category was made by his own deposition testimony indicating that he was confined to his home for no more than one month after the accident and by a lack of admissible medical evidence in the record. "Without objective findings of limitation of motion contemporaneous with the accident, plaintiff's assertions of difficulty engaging in ... [specified] activities ... are insufficient to raise a triable issue as to whether there was a curtailment of his customary activities during the requisite 90/180-day period" (Brantley v New York City Metro. Tr. Auth., 48 AD3d 313 [2008]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 28, 2009