Rucci v Shkoza

[*1] Rucci v Shkoza 2010 NY Slip Op 51931(U) [29 Misc 3d 133(A)] Decided on November 12, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
.

Roberto Rucci, Plaintiff-Respondent, 570512/10

against

Flamur Shkoza, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 3, 2010, which, in effect, granted plaintiff's motion to vacate a prior order of the same court (Elizabeth A. Taylor, J.), entered July 14, 2009, granting defendant's unopposed motion for summary judgment dismissing the complaint, and, upon vacatur, denied defendant's motion for summary judgment.

Per Curiam.

Order (Fernando Tapia, J.), entered March 3, 2010, reversed, without costs, plaintiff's motion to vacate a prior order (Elizabeth A. Taylor, J.), entered July 14, 2009, is denied, and the prior order granting defendant's motion for summary judgment dismissing the complaint is reinstated. The Clerk is directed to enter judgment dismissing the complaint.

Even assuming that plaintiff's claim of law office failure (see CPLR 2005) established a reasonable excuse for his default in opposing defendant's motion for summary judgment, plaintiff failed to establish that he had a potentially meritorious claim of serious injury (Insurance Law § 5102[d]) in this action for personal injuries arising out of a motor vehicle accident (see Montague v Rivera, 50 AD3d 656 [2008]).

Plaintiff's medical evidence, submitted in support of the motion to vacate, was deficient in several respects. Although plaintiff's treating physician attempted to set forth range of motion findings with respect to plaintiff's spine, right shoulder and right arm, the physician did not compare those findings to normal ranges of motion. In addition, the doctor offered no explanation for two separate gaps in plaintiff's treatment one seven months, the other four years and did not address defendant's expert physician's assertion that plaintiff's neck and shoulder abnormalities were degenerative, "clinically silent," or not pathological (see Barner v Shahid, 73 AD3d 593 [2010]; Zhijian Yang v Alston,73 AD3d 562 [2010]).

Plaintiff's serious injury claim predicated on the 90/180-day category was refuted by his admission at deposition that he missed only one shift at work as a result of the accident, and his failure to describe restrictions of "substantially all" of his daily activities. Moreover, no [*2]competent medical proof was offered to substantiate that claim (see Zhijian Yang, supra).

Therefore, plaintiff's motion should have been denied and the prior order granting defendant's motion for summary judgment must be reinstated.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 12, 2010