Ramirez v Sherpa

[*1] Ramirez v Sherpa 2009 NY Slip Op 50268(U) [22 Misc 3d 135(A)] Decided on February 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 18, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570588/08.

Angel Ramirez, Plaintiff-Respondent,

against

Dawa Sherpa, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered June 19, 2008, which denied defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.) entered June 19, 2008, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The affirmed medical reports of defendant's orthopedist and neurologist, detailing the objective tests that they performed on examination of plaintiff, and concluding that he had no disabilities and full range of motion in his cervical and lumber spine, shoulders and wrists, satisfied defendant's prima facie burden of establishing that plaintiff did not suffer serious injury within the meaning of Insurance Law § 5102(d) (see Rossi v Alhassan, 48 AD3d 270 [2008]). That defendant's experts did not review plaintiff's diagnostic reports does not mean that defendant failed to meet their initial burden (see Onishi v N & B Taxi, Inc., 51 AD3d 594 [2008]). Plaintiff's medical reports submitted in opposition did not include the requisite contemporaneous quantitative assessment of limitations at each plane of motion. Moreover, the findings of plaintiff's doctor, based on his recent examination, addressed the cervical injury only (see Lattan v Gretz Tr. Inc., 55 AD3d 449 [2008]). Plaintiff also failed to offer competent medical proof that he could not perform substantially all of his daily activities for 90 out of the 180 days following the accident.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 18, 2009