Opinion
476 CA 21-01377
06-10-2022
Lee LAMENDOLA, Plaintiff-Appellant, v. Abdulaziz ALHARBI, Defendant-Respondent.
FRANK M. BOGULSKI, BUFFALO, FOR PLAINTIFF-APPELLANT. NASH CONNORS, P.C., BUFFALO (JONATHAN D. COX OF COUNSEL), FOR DEFENDANT-RESPONDENT.
FRANK M. BOGULSKI, BUFFALO, FOR PLAINTIFF-APPELLANT.
NASH CONNORS, P.C., BUFFALO (JONATHAN D. COX OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when a vehicle operated by defendant collided with the vehicle plaintiff was driving. Supreme Court granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under the category alleged by him, i.e., the 90/180-day category (see Insurance Law § 5102 [d] ). Plaintiff appeals, and we affirm.
We conclude that defendant met his initial burden of establishing as a matter of law that plaintiff did not sustain a serious injury under the 90/180-day category. Defendant submitted plaintiff's medical records, which revealed no abnormal findings on the CT scan and MRI, and also submitted the report of the examining physician, who concluded that there were no objective findings associated with plaintiff's claims of headache, lightheadedness, and difficulty with concentrating that were purportedly caused by the motor vehicle accident (see Thornton v. Husted Dairy, Inc. , 134 A.D.3d 1402, 1403, 23 N.Y.S.3d 760 [4th Dept. 2015] ). Contrary to plaintiff's contention, defendant's submission of the medical report of the physician who performed plaintiff's neurological evaluation does not create a question of fact inasmuch as the physician's findings were based solely on plaintiff's subjective complaints (see generally Sierson v. Gacek , 67 A.D.3d 1431, 1432, 889 N.Y.S.2d 342 [4th Dept. 2009], lv denied 14 N.Y.3d 704, 2010 WL 606424 [2010] ).
In opposition to the motion, plaintiff failed to raise an issue of fact (see Thornton , 134 A.D.3d at 1403, 23 N.Y.S.3d 760 ). The deposition testimony of plaintiff that he was unable to return to work and could no longer participate in certain recreational activities as a result of his injuries is insufficient to raise a triable issue of fact, in the absence of " ‘a physician's affidavit substantiating the existence of a medically determined injury which caused the alleged limitation of [his] activities’ " ( Dann v. Yeh , 55 A.D.3d 1439, 1441, 865 N.Y.S.2d 472 [4th Dept. 2008] ).