Arzu v Rahmanan

[*1] Arzu v Rahmanan 2012 NY Slip Op 50100(U) Decided on January 25, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2012
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
11-349.

Julian Arzu, Plaintiff-Respondent, - -

against

Lawrence Rahmanan, Defendant-Appellant. Lawrence Rahmanan, Third-Party Plaintiff, - - William Barber, Third-Party Defendant.

Defendant Lawrence Rahmanan appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), dated July 7, 2011, which denied his motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), dated July 7, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In support of his motion for summary judgment, defendant made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the vehicular accident. Defendant submitted affirmed reports of an orthopedist and neurologist reporting normal ranges of motion in all of plaintiff's tested body areas, specifying the objective tests undertaken, and concluding that plaintiff had recovered without disability from sprain and strain injuries (see Duran v Hoy, 89 AD3d 541[2011]). Defendant also sufficiently refuted plaintiff's 90/180-day claim (see id.; Hernandez v Adelango Trucking, 89 AD3d 407 [2011]; Porter v Bajana, 82 AD3d 488 [2011]).

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's examining physician offered no objective basis or reason, other than the history provided by plaintiff, for concluding that the injuries resulted from this accident and not a subsequent automobile accident in which plaintiff allegedly sustained injuries (see Shu Chi Lam v Wang Dong, 84 AD3d 515, 516 [2011]; Lunkins v Toure, 50 AD3d 399 [2008]). Plaintiff's failure to adequately address the [*2]effect of the second accident on his alleged limitations rendered speculative his doctor's opinion that the injuries claimed herein were related to the subject accident (see Zhijian Yang v Alston, 73 AD3d 562, 563 [2010]; Lunkins v Toure, 50 AD3d at 399-400). Nor did plaintiff substantiate his 90/180-day claim. That plaintiff was placed on limited duty upon his return to work following a five-day absence is insufficient to raise a triable issue (see Perez v Corr, 84 AD3d 646, 647 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 25, 2012