Torres v Metropolitan Cable Communications, Inc.

[*1] Torres v Metropolitan Cable Communications, Inc. 2009 NY Slip Op 51143(U) [23 Misc 3d 146(A)] Decided on June 8, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-141 Q C.

Beulah Torres, Appellant,

against

Metropolitan Cable Communications, Inc., KYO JEEN LEE, ALFREDO MARTY and ANN MARTY, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 27, 2007, deemed from a judgment of the same court entered October 4, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 27, 2007 order granting defendants' motions for summary judgment, dismissed the complaint.

Judgment affirmed without costs.

Plaintiff commenced this action to recover for serious injuries allegedly sustained in a motor vehicle accident. By two separate motions, defendants Metropolitan Cable Communications, Inc. and Kyo Jeen Lee, and defendants Alfredo Marty and Ann Marty, moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court granted the motions, and the instant appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.

Plaintiff's sole contention in the Civil Court and on this appeal is that she raised a triable issue of fact warranting the denial of defendants' motions. We disagree. While the affirmed medical reports of plaintiff's treating physician showed limitations in the range of motion of plaintiff's cervical and lumbar spine based on recent examinations, plaintiff failed to proffer medical evidence in admissible form that was contemporaneous with the subject accident, showing a limitation in her range of motion (see Singh v Mohamed, 54 AD3d 933 [2008]; Zinger v Zylberberg, 35 AD3d 851 [2006]).

The record also demonstrates that plaintiff's medical expert failed to comment upon the findings by plaintiff's own radiologist of minimal degenerative disease in plaintiff's lumbar spine. As a result, the medical expert's conclusion that the injuries to plaintiff's lumbosacral spine were [*2]caused by the accident were rendered speculative in light of this omission (see Ferebee v Sheika, 58 AD3d 675 [2009]; Cornelius v Cintas Corp., 50 AD3d 1085 [2008]). Plaintiff also failed to set forth any competent medical evidence to establish that she sustained a medically determined injury of a nonpermanent nature which prevented her from performing her usual and customary activities for 90 of the 180 days following the subject accident (see Rabolt v Park, 50 AD3d 995 [2008]; Roman v Fast Lane Car Serv., 46 AD3d 535 [2007]). Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 08, 2009