Opinion
2013-02-21
Jason BRAND, et al., Plaintiffs–Appellants, v. Kevin EVANGELISTA, Defendant–Respondent.
Frommer & Cerrato, LLP, Garden City (Stephen G. Frommer of counsel), for appellants. Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for respondent.
Frommer & Cerrato, LLP, Garden City (Stephen G. Frommer of counsel), for appellants. Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for respondent.
ANDRIAS, J.P., SAXE, DeGRASSE, ABDUS–SALAAM, FEINMAN, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered December 14, 2011, which granted defendant's motion for summary judgment dismissing the complaint based on the failure to establish a serious injury pursuant to Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendant established his entitlement to judgment as a matter of law dismissing plaintiff's claims pursuant to Insurance Law § 5102(d) by submitting, inter alia, affirmed reports of a neurologist and an orthopedist who opined that plaintiff had no residuals from his recent back surgery, and no deficits in his range-of-motion testing ( see Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590–591, 920 N.Y.S.2d 24 [1st Dept. 2011] ). The experts' use of slightly different normal values in performing one diagnostic test was too minor to be considered significant ( see Anderson v. Zapata, 88 A.D.3d 504, 930 N.Y.S.2d 564 [1st Dept. 2011]; Feliz v. Fragosa, 85 A.D.3d 417, 418, 924 N.Y.S.2d 82 [1st Dept. 2011] ). Moreover, the finding by one of defendant's physicians of a minor limitation in one plane of range of motion in plaintiff's lumbar spine was “ ‘insignificant for purposes of Insurance Law § 5102(d)’ ” ( see Vega v. MTA Bus Co., 96 A.D.3d 506, 507, 946 N.Y.S.2d 162 [1st Dept. 2012], quoting Rosa–Diaz v. Maria Auto Corp., 79 A.D.3d 463, 464, 913 N.Y.S.2d 51 [1st Dept. 2010] ). Nor were defendant's physicians required to review plaintiff's medical records, since they detailed the specific tests they used in their personal examination of plaintiff, which revealed full range of motion ( see Fuentes v. Sanchez, 91 A.D.3d 418, 419, 936 N.Y.S.2d 151 [1st Dept. 2012]; Zhijian Yang v. Alston, 73 A.D.3d 562, 903 N.Y.S.2d 4 [1st Dept. 2010] ).
In opposition, plaintiff failed to raise an issue of fact as to permanent limitations resulting from his claimed lumbar spine injury. His physicians did not tender any recent quantified range-of-motion measurements to demonstrate any limitations he may have had from his herniated discs, or following his second back surgery ( see Madera v. Gressey, 84 A.D.3d 460, 922 N.Y.S.2d 81 [1st Dept. 2011] ), and failed to render a “qualitative assessment of plaintiff's limitations” ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ). Plaintiff presented no recent reports on his medical condition to refute the defense experts' findings that he had recovered ( see Vega, 96 A.D.3d at 507, 946 N.Y.S.2d 162;Martinez v. Goldmag Hacking Corp., 95 A.D.3d 682, 683, 944 N.Y.S.2d 555 [1st Dept. 2012] ).
Moreover, while plaintiff's physician concluded that his preexisting condition was aggravated by the subject motor vehicle accident, he failed to provide any basis for determining the extent of any exacerbation of plaintiff's prior injuries (see Suarez v. Abe, 4 A.D.3d 288, 772 N.Y.S.2d 317 [1st Dept. 2004]; and see Dorrian v. Cantalicio, 101 A.D.3d 578, 957 N.Y.S.2d 47, [1st Dept. 2012] ).
The three-month period plaintiff alleged he lost from work was not substantiated by any documentation from his employer or medical documentation of his inability to perform his usual daily tasks. Therefore, plaintiff failed to satisfy the 90/180–day category ( see Winters v. Cruz, 90 A.D.3d 412, 413, 933 N.Y.S.2d 551 [1st Dept. 2011] ).