Thompson v Etinoff

[*1] Thompson v Etinoff 2009 NY Slip Op 50104(U) [22 Misc 3d 130(A)] Decided on January 22, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570907/07.

Erica Thompson, Plaintiff-Respondent,

against

Zenitha Etinoff, Defendant-Respondent, -and- Jose E. Rosario and G & Auto Corporation, Defendants-Appellants.

Defendants Rosario and G & V Auto Corporation appeal from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered August 28, 2007, which denied their motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ben R. Barbato, J.), entered August 28, 2007, reversed, with $10 costs, motion granted, the complaint dismissed as against defendants-appellants and, upon a search of the record, as against defendant Etinoff as well. The Clerk is directed to enter judgment accordingly.

Defendants satisfied their burden of establishing prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d), through the medical report of a neurologist, who quantified full range of motion in plaintiff's spine and concluded that plaintiff had recovered from her injuries without disability, and the report of a radiologist, who attested that plaintiff's disc abnormalities were not of traumatic origin (see Style v Joseph, 32 AD3d 212 [2006]; Perez v Rodriguez, 25 AD3d 506 [2006]; Nagbe v Minigreen Hacking, 22 AD3d 326 [2005]).

In opposition, plaintiff failed to submit objective medical evidence in admissible form based upon a recent examination (see Pulgram v Reisner, 44 AD3d 503 [2007]; Thompson v. Abbasi, 15 AD3d 95 [2005]). Plaintiff's treating physician last examined her in August 2004, four months after the accident. The physician's findings of disability were contradicted by defendants' neurologist who examined plaintiff in 2006 and found no limitations. Plaintiff submitted no evidence to controvert these later findings (see Lopez v Mendoza, 40 AD3d 436 [2007]). Nor does the record disclose the existence of a triable issue with respect to plaintiff's [*2]90/180 claim.

Although defendant Etinoff did not file a notice of appeal from the denial of her motion for summary judgment, we search the record and grant her summary judgment, since plaintiff cannot meet the threshold for serious injury (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 22, 2009