Scott v LaPointe

[*1] Scott v LaPointe 2006 NY Slip Op 52036(U) [13 Misc 3d 135(A)] Decided on October 3, 2006 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 3, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1656 Q C.

Jeffrey C. Scott, Respondent,

against

Joseph R. LaPointe, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Johnny Lee Baynes, J.), entered June 30, 2005. The order, insofar as appealed from as limited by the brief, denied defendant's motion for summary judgment dismissing the personal injury cause of action.

Order, insofar as appealed from, reversed without costs and defendant's motion for summary judgment dismissing the first cause of action based on personal injuries granted.

Defendant moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Defendant submitted an affirmation from a doctor who examined plaintiff on defendant's behalf and found that there was full range of motion in plaintiff's cervical and lumbar spines. The doctor concluded that plaintiff had sustained a lumbar sprain from which he had fully recovered. Defendant also submitted two unsworn reports of plaintiff's treating physician, one prepared nine days after the accident and the other two months later. The reports indicated that plaintiff returned to work two days after the accident. In the second report, plaintiff's doctor referred to an MRI which showed disc bulges at L3-L4 and L4-L5. He found no limitation of plaintiff's cervical and lumbar spines. Defendant may rely on the unsworn medical reports of plaintiff's doctor in support of his motion (Pagano v Kingsbury, 182 AD2d 268 [1992]; see also Fragale v Geiger, 288 AD2d 431 [2001]). In the absence of any objective evidence of a related disability or restriction, the mere presence of bulging or herniated discs is insufficient to raise a triable issue of fact (Salawudeen v Barrone, 11 [*2]AD3d 444 [2004]). Defendant's submission shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

Plaintiff unsuccessfully opposed the motion. Plaintiff's doctor found that plaintiff had full range of motion of his cervical and lumbar spines, with minimal pain at the end of his range of motion of his cervical spine. The record does not raise an issue of fact
as to whether the soft tissue injury sustained by plaintiff resulted in a meaningful impairment or limitation (Clements v Lasher, 15 AD3d 712 [2005]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: October 3, 2006