Opinion
01-24-2017
Robert BOOTH, Plaintiff–Appellant, v. Ilo MILSTEIN also known as Ilo Milton, Defendant–Respondent.
Raymond Schwartzberg & Associates, PLLC, New York (Raymond Schwartzberg of counsel), for appellant. Sweetbaum & Sweetbaum, New Hyde Park (Brian J. Daly of counsel), for respondent.
Raymond Schwartzberg & Associates, PLLC, New York (Raymond Schwartzberg of counsel), for appellant.
Sweetbaum & Sweetbaum, New Hyde Park (Brian J. Daly of counsel), for respondent.
SWEENY, J.P., RENWICK, ANDRIAS, KAHN, GESMER, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered November 6, 2015, which, in this action for personal injuries sustained in a motor vehicle accident, granted defendant's motion for summary judgment dismissing the complaint on the threshold issue of serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendant established entitlement to judgment as a matter of law by showing that plaintiff did not sustain a serious injury to his lumbar spine. Defendant submitted, inter alia, the affirmed report of a neurologist, who found full range of motion and normal test results, and opined that plaintiff's injuries had resolved (see Birch v. 31 N. Blvd., Inc., 139 A.D.3d 580, 32 N.Y.S.3d 142 [1st Dept.2016] ; Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 993 N.Y.S.2d 1 [1st Dept.2014], affd. 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2015] ).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff did not submit recent evidence of limitations in his lumbar spine (see Haniff v. Khan, 101 A.D.3d 643, 644, 958 N.Y.S.2d 89 [1st Dept.2012] ), and although plaintiff's chiropractor found limitations upon examination approximately two years after the accident, he did not reconcile those findings with earlier findings of normal or near normal range of motion made by another treating physician (see Colon v. Torres, 106 A.D.3d 458, 965 N.Y.S.2d 90 [1st Dept.2013] ; Jno–Baptiste v. Buckley, 82 A.D.3d 578, 919 N.Y.S.2d 22 [1st Dept.2011] ).
In view of the foregoing, the issue of liability is academic (see Angeles v. Versace Inc., 124 A.D.3d 544, 545, 2 N.Y.S.3d 448 [1st Dept.2015] ).