Cabrera v Mulligan

[*1] Cabrera v Mulligan 2005 NY Slip Op 51835(U) [9 Misc 3d 139(A)] Decided on November 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 15, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: NOVEMBER 15, 2005 June 2005 Term Suarez, P.J., Davis, Schoenfeld, JJ.
570103/05

Nestor Cabrera, Plaintiff-Appellant,

against

Mark Mulligan and Bernard Mulligan, 05-083 Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court, New York County, entered on or about December 24, 2003 (Karen S. Smith, J.), which granted defendants' motion to set aside a jury verdict and dismiss the complaint.

PER CURIAM:

Order entered on or about December 24, 2003 (Karen S. Smith, J.) affirmed, with $10 costs.

Plaintiff failed to introduce legally sufficient evidence at trial that he had sustained a serious injury within the meaning of Insurance Law § 5102(d) (see Licari v Elliott, 57 NY2d 230 [1982]; Rodriguez v Schickler, 229 AD2d 326 [1996], lv denied 89 NY2d 810 [1997]). Plaintiff testified that he attended physical therapy sessions for several months after the accident, after which he "felt much better," while continuing to work as a livery driver. There was no further treatment. The findings of muscle spasm and limitation of motion, which plaintiff's doctor conceded were based on the patient's expressions of pain, did not establish serious injury in the absence of proof that these findings were objectively ascertained (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 357-358 [2002]; Scudera v Mahbubur, 299 AD2d 535, 536 [2002]). A cervical MRI that only plaintiff's doctor thought showed a herniated disc was in any event inadequate proof of serious injury, absent "additional objective medical evidence establishing that the accident resulted in significant physical limitations" (Pommells v Perez, 4 NY3d 566, 574 [2005]; see also Toure v Avis Rent A Car Sys., supra). Given plaintiff's prompt return to work, his purely subjective claims of pain and unsubstantiated claims of restriction of movement failed to establish the existence of a serious injury (see e.g. Thompson v Abbasi, 15 AD3d 95 [2005]).

This constitutes the decision and order of the Court.
Decision Date: November 15, 2005