Opinion
15537 Index No. 20620/19 Case No. 2021-00364
03-17-2022
Angel RIVERA, Plaintiff–Appellant, v. Jorge LOPEZ–REYES doing business as Mr. Softee of the Bronx, Inc., et al., Defendants–Respondents.
The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for appellant. Scahill Law Group, P.C., Bethpage (Gerard Ferrara of counsel), for respondents.
The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for appellant.
Scahill Law Group, P.C., Bethpage (Gerard Ferrara of counsel), for respondents.
Kapnick, J.P., Mazzarelli, Friedman, Gesmer, Oing, JJ.
Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered December 22, 2020, which granted defendants’ motion for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate that he suffered a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants satisfied their prima facie burden of showing that plaintiff did not sustain a serious injury to his cervical spine, lumbar spine, or left shoulder by submitting the reports of their orthopedic surgeon and neurologist, who found that plaintiff had normal range of motion and opined that the alleged injuries had resolved with no permanent or residual effects (see Chawdhury v. 3511 Sys. Inc., 193 A.D.3d 541, 541, 146 N.Y.S.3d 618 [1st Dept. 2021] ; Stickney v. Akhar, 187 A.D.3d 425, 425, 132 N.Y.S.3d 120 [1st Dept. 2020] ). Defendants’ orthopedic surgeon's finding of slight limitation in range of motion in his lumbar spine did not defeat defendants’ prima facie showing (see Olivare v. Tomlin, 187 A.D.3d 642, 643, 131 N.Y.S.3d 159 [1st Dept. 2020] ; see Stovall v. New York City Tr. Auth., 181 A.D.3d 486, 486, 117 N.Y.S.3d 840 [1st Dept. 2020] ).
In opposition, plaintiff failed to raise an issue of fact since he submitted no properly affirmed medical reports, but only certified medical records, which may be considered only for limited purposes, such as showing that plaintiff sought treatment after the accident (see Gomez v. Davis, 146 A.D.3d 456, 45 N.Y.S.3d 399 [1st Dept. 2017] ). The records did not become admissible simply because defendants’ experts reviewed them, because the defense experts did not rely on them (see Cortez v. Bray, 192 A.D.3d 451, 451, 139 N.Y.S.3d 828 [1st Dept. 2021] ; Walker v. Whitney, 132 A.D.3d 478, 478, 18 N.Y.S.3d 27 [1st Dept. 2015] ; Malupa v. Oppong, 106 A.D.3d 538, 539, 966 N.Y.S.2d 9 [1st Dept. 2013] ). Although defendants’ orthopedist relied on plaintiff's emergency room records in support of his opinion, those records, if considered, do not support plaintiff's claim of serious injury.
Plaintiff's allegation in his bill of particulars that he was confined to bed for approximately one month after the accident, and his testimony that he began working about one month after the accident defeats his 90/180-day claim (see Tejada v. LKQ Hunts Point Parts, 166 A.D.3d 436, 437–438, 88 N.Y.S.3d 156 [1st Dept. 2018] ; Streeter v. Stanley, 128 A.D.3d 477, 478, 10 N.Y.S.3d 11 [1st Dept. 2015] ).