Summary
In Levinson we held that there was no reason to address whether one of the “cross motions” was untimely because the moving defendants' timely motion had put plaintiff on notice that he needed to rebut the prima facie showing that he had not met the serious injury threshold; when the plaintiff in Levinson failed to do this, the complaint was correctly dismissed as to all codefendants.
Summary of this case from Kershaw v. Hosp. for Special SurgeryOpinion
2013-04-25
Jeffrey S. LEVINSON, Plaintiff–Appellant, v. Mohiuddin MOLLAH, et al., Defendants–Respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Thomas Torto, New York (Jason Levine of counsel), for Mohiuddin Mollah and Point West Trans Inc., respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Thomas Torto, New York (Jason Levine of counsel), for Mohiuddin Mollah and Point West Trans Inc., respondents.
Burke, Gordon & Conway, White Plains (Stephane D. Martin of counsel), for Jonathon D. Morse and George Morse, respondents.
TOM, J.P., ACOSTA, ROMÁN, FEINMAN, CLARK, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered February 23, 2012, which granted defendants Mohiuddin Mollah and Point West Trans Inc.'s motion and defendant Jonathon Morse's cross motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants met their prima facie burden of showing that plaintiff did not sustain a serious injury to his cervical spine and lumbar spine by submitting a neurologist's affirmation stating that, upon conducting an examination of plaintiff, she found a full range of motion in every plane of both body parts, and compared plaintiff's values to normal ( see Steinbergin v. Ali, 99 A.D.3d 609, 953 N.Y.S.2d 25 [1st Dept. 2012] ). Contrary to plaintiff's argument, defendants' expert was not required to specifically address the diagnostic findings in plaintiff's medical records ( see Robinson v. Joseph, 99 A.D.3d 568, 952 N.Y.S.2d 187 [1st Dept. 2012];Fuentes v. Sanchez, 91 A.D.3d 418, 419, 936 N.Y.S.2d 151 [1st Dept. 2012];Clemmer v. Drah Cab Corp., 74 A.D.3d 660, 660–661, 905 N.Y.S.2d 31 [1st Dept. 2010] ). Plaintiffs' remaining arguments attempting to undermine that affirmation are unpreserved for review and, in any event, unpersuasive ( see Feliz v. Fragosa, 85 A.D.3d 417, 418, 924 N.Y.S.2d 82 [1st Dept. 2011] ).
Plaintiff failed to raise an issue of fact in opposition. The only sworn evidence plaintiff proffered was an affidavit from his chiropractor who, following an examination conducted shortly after the one performed by defendants' neurologist, acknowledged that both body parts exhibited a full range of motion in every plane, and offered no qualitative assessment of any limitations. Even if plaintiff's unaffirmed MRI reports showing bulging discs could be considered, his showing would be insufficient because “bulging or herniated discs are not, in and of themselves, evidence of serious injury without competent objective evidence of the limitations and duration of the disc injury” ( Wetzel v. Santana, 89 A.D.3d 554, 555, 934 N.Y.S.2d 4 [1st Dept. 2011] ). Further, findings based on subjective complaints of pain are insufficient to raise a triable issue of fact ( Arenas v. Guaman, 98 A.D.3d 461, 949 N.Y.S.2d 688 [1st Dept. 2012] ).
We need not determine whether defendant Morse's cross motion for summary judgment was timely, because once it was established by defendants Mollah and Point West that plaintiff did not meet the serious injury threshold, the complaint would be dismissed as to all codefendants as well ( see Britton v. Villa Auto Corp., 89 A.D.3d 556, 934 N.Y.S.2d 6 [1st Dept. 2011] ).
We have considered plaintiff's remaining contentions and find them unavailing.