Opinion
2011-10-13
Rebecca ANDERSON, etc., et al., Plaintiffs–Respondents,v.Sergio ZAPATA, Defendant–Appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellant.Law Offices of Eric H. Green and Associates, New York (Hiram A. Raldiris of counsel), for respondents.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellant.Law Offices of Eric H. Green and Associates, New York (Hiram A. Raldiris of counsel), for respondents.
Order, Supreme Court, Bronx County (George J. Silver, J.), entered December 7, 2010, which denied defendant's motion for summary judgment dismissing the complaint on the ground that plaintiffs did not sustain 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 in defendant's favor dismissing the complaint.
Defendant's orthopedist found no limitations of motion regarding plaintiff Rebecca Anderson. Although defendant's neurologist found that she had limitations in 2010, there is no objective evidence to support a cervical injury ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ). Any alleged injuries to her knees were shown to be the result of a preexisting degenerative condition, which was confirmed, rather than refuted, by her radiologist ( see Valentin v. Pomilla, 59 A.D.3d 184, 873 N.Y.S.2d 537 [2009] ). Moreover, the failure to perform any range of motion testing contemporaneous with the accident eight years earlier renders any attempt to connect her present day injuries to the 2002 accident speculative ( see Batts v. Medical Express Ambulance Corp., 49 A.D.3d 294, 295, 853 N.Y.S.2d 54 [2008] ).
Defendant satisfied his initial burden of establishing, prima facie, the absence of any triable questions of fact so as to entitle him to judgment as a matter of law as to plaintiffs Strawberry and Mychal Isaac by submitting the affirmed reports of an orthopedic surgeon and a neurologist ( see DeJesus v. Paulino, 61 A.D.3d 605, 878 N.Y.S.2d 29 [2009] ). The differences between the standards for normal ranges of motion cited by defendant's orthopedic and neurologic reports are not significant. Both doctors concluded that plaintiffs Strawberry and Mychal Isaac had normal
ranges of motion, and the minor differences in what they regarded as normal ranges do not affect defendant's entitlement to summary judgment ( see Feliz v. Fragosa, 85 A.D.3d 417, 924 N.Y.S.2d 82 [2011] ).
We have considered plaintiff's remaining arguments and find them unavailing.