Shapira v City of New York

Shapira v City of New York 2010 NY Slip Op 01435 [70 AD3d 525] February 18, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

Amanda Shapira, Appellant,
v
City of New York et al., Respondents.

—[*1] Edward T. Chase, Mount Vernon, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), for municipal respondent.

Russo, Keane & Toner, LLP, New York (John A. Corring of counsel), for Gaetano Competrillo, Souleymane Diallo and Fixture Cab Corp., respondents.

Order, Supreme Court, New York County (Carol E. Huff, J.), entered September 21, 2009, which granted defendants' motions to dismiss the complaint, and order, same court and Justice, entered October 16, 2008, which denied plaintiff's motion for a new trial, unanimously affirmed, without costs.

Plaintiff's failure to present objective evidence of physical limitations attributable to the disc herniations seen on her MRIs is fatal to her claim of serious injury to her spine (Pommells v Perez, 4 NY3d 566, 574 [2005]). As to her claim of significant disfigurement as a result of a nasal fracture, plaintiff's contention that the trial court gave her too short a continuance to obtain the hospital records that would document the fracture is unavailing, since the record demonstrates that the absence of competent evidence at trial was due either to a deliberate tactical decision by her counsel not to procure records that were readily available or to a lack of due diligence on his part (see Matter of Steven B., 6 NY3d 888 [2006]). Concur—Friedman, J.P., Sweeny, Nardelli and Freedman, JJ.