Diakite v Soderstrom

Diakite v Soderstrom 2011 NY Slip Op 08487 Decided on November 22, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 22, 2011
Moskowitz, J.P., Renwick, DeGrasse, Abdus-Salaam, Román, JJ.
6137 309254/09

[*1]Mody Diakite, Plaintiff-Respondent,

v

Mark A. Soderstrom, et al., Defendants-Appellants.




John C. Buratti & Associates, New York (John C. Buratti of
counsel), for appellants.
Krentsel & Guzman, LLP, New York (Steven E. Krentsel of
counsel), for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered March 23, 2011, which, to the extent appealed from, denied defendants' motion for summary judgment dismissing plaintiff's claims of serious injury of a permanent nature, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

Defendants established prima facie that plaintiff did not sustain a serious injury of a permanent nature by submitting plaintiff's medical records and the affirmed reports of medical experts who, upon examination, found that plaintiff had active mobility of his left shoulder and had recovered from the 2009 vehicular accident without any disability. In opposition, plaintiff failed to raise a triable issue of fact. The limitation in range of motion in his left shoulder found by his treating physician in November 2010 was insufficient to qualify as "significant," given the otherwise normal shoulder findings. Moreover, one year earlier the physician had found "active mobility of [plaintiff's] left shoulder with no significant pain," and yet no explanation was offered for the more recent finding of limitation (see Insurance Law § 5102[d]; Jno-Baptiste v Buckley, 82 AD3d 578 [2011]).

We have reviewed plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 22, 2011

CLERK