Opinion
03-21-2017
Jesus CORPORAN, Plaintiff–Appellant, v. Anita ERICHSEN, et al., Defendants–Respondents.
Mallilo & Grossman, Flushing (Serge M. Pierre of counsel), for appellant. Sweetbaum & Sweetbaum, Lake Success (Joel A. Sweetbaum of counsel), for respondents.
Mallilo & Grossman, Flushing (Serge M. Pierre of counsel), for appellant.
Sweetbaum & Sweetbaum, Lake Success (Joel A. Sweetbaum of counsel), for respondents.
ACOSTA, J.P., RENWICK, MANZANET–DANIELS, WEBBER, GESMER, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about April 13, 2016, which granted defendants' motion for summary judgment dismissing the action on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants made a prima facie showing that plaintiff did not suffer any permanent consequential limitation or significant limitations of use in his shoulder or spine, by submitting the affirmed reports of their experts, who found no limitations in those body parts, and who concluded that plaintiff's cervical and lumbar spine injuries were degenerative, and not causally related to the accident (Johnson
v. Salaj, 130 A.D.3d 502, 502, 13 N.Y.S.3d 418 [1st Dept.2015] ).
Plaintiff failed to raise any triable issues of fact. A tear in the shoulder, without any evidence of limitations, is insufficient to raise a triable issue of fact (Acosta v. Zulu Servs., Inc., 129 A.D.3d 640, 640, 13 N.Y.S.3d 34 [1st Dept.2015] ). Although plaintiff's expert measured significant limitations in his cervical spine shortly after the accident, plaintiff submitted no evidence that he continued to have range of motion deficits or qualitative limitations (Luetto v. Abreu, 105 A.D.3d 558, 558, 963 N.Y.S.2d 112 [1st Dept.2013] ). Plaintiff's expert did not make any qualitative assessments or observations of limitations of plaintiff's lumbar spine until almost two years after the accident, which is insufficient to raise an issue of fact as to causation (see Camilo v. Villa Livery Corp., 118 A.D.3d 586, 586–587, 987 N.Y.S.2d 164 [1st Dept.2014] ).
Defendants made a prima facie showing that plaintiff did not suffer a serious injury under the 90/180–day category by submitting evidence that plaintiff did not miss any work as a result of the accident (DaCosta v. Gibbs, 139 A.D.3d 487, 488, 33 N.Y.S.3d 160 [1st Dept.2016] ) and that plaintiff's cervical and lumbar spine injuries were not causally related to the accident (Camilo, 118 A.D.3d at 587, 987 N.Y.S.2d 164 ). Given that plaintiff did not miss any work, plaintiff's affidavit and his expert's affidavit were insufficient to raise a triable issue of fact (see Stevens v. Bolton, 135 A.D.3d 647, 648–649, 24 N.Y.S.3d 269 [1st Dept.2016] ; see also Gorden v. Tibulcio, 50 A.D.3d 460, 463, 855 N.Y.S.2d 515 [1st Dept.2008] ).