Rivera v Richardson

[*1] Rivera v Richardson 2005 NY Slip Op 50016(U) Decided on January 12, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 12, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM J. DAVIS
HON. PHYLLIS GANGEL-JACOB, Justices.
570488/04

Linda Rivera, Plaintiff-Respondent,

against

Greg Richardson, TANIA DE LA CRUZ, AND ROBERT GOLDSMITH, Defendants-Appellants.

Defendants appeal from an order of the Civil Court,

Bronx County, dated September 15, 2003 (Robert A. Sackett, J.) which denied their cross motion for summary judgment dismissing the complaint.
PER CURIAM:

Order dated September 15, 2003 (Robert A. Sackett, J.) reversed, with $10 costs, defendants' cross motions for summary judgment granted, and the complaint dismissed.

Plaintiff's submission was inadequate to defeat defendants' prima facie showing of entitlement to summary judgment on the "serious injury" issue (Insurance Law § 5102[d]). The affirmation submitted by plaintiff's medical expert omitted any reference to objective tests underlying his diagnosed restrictions of movement (see Toure v Avis Rent-A-Car, 98 NY2d 345 [2002]). In addition, the expert failed to mention that at the time of the accident, plaintiff was undergoing treatment for similar injuries that she sustained in an automobile collision three months earlier, and failed to address defendant's expert's conclusion that a comparison of cervical and lumbar MRIs taken after each accident showed no change in plaintiff's condition (see [*2]Franchini v Palmieri, 1 NY3d 536 [2003]; Eisen v Walter & Samuels, 215 AD2d 149 [1995]). In light of plaintiff's expert's failure to address the preexisting accident and injuries, his finding that plaintiff's restriction of motion was causally related to the accident should not have been considered (see Kupka v Emmerich, 2 AD3d 595 [2003]). Moreover, the gap of three and one-half years between the doctor's lone examination of plaintiff and his affirmation rendered the expert's evidence stale (see Medina-Santiago v Nojovits, 5 AD3d 253 [2004]).
This constitutes the decision and order of the court.
Decision Date: January 12, 2005