Carrasco v Cabral

[*1] Carrasco v Cabral 2009 NY Slip Op 50989(U) [23 Misc 3d 140(A)] Decided on May 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 21, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, J.
570370/08

Graciosa Carrasco, Plaintiff-Respondent,

against

Katiuska Cabral, Defendant-Respondent and Noel Rodriguez and Bronx & Manhattan Car Service, Defendants-Appellants.

Defendants Rodriguez and Bronx & Manhattan Car Service appeal from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated April 4, 2008, which denied their motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), dated April 4, 2008, reversed, without costs, motion granted and complaint dismissed as against defendants-appellants and, upon a search of the record, as against co-defendant Cabral. The Clerk is directed to enter judgment accordingly.

The affirmed medical reports of defendants' medical experts, detailing the objective tests performed and finding that plaintiff had no significant or permanent limitation of motion resulting from the motor vehicle accident, satisfied defendants' burden of establishing prima facie that plaintiff did not sustain a serious injury (see Insurance Law § 5102[d]; Licari v Elliott, 57 NY2d 230 [1982]; Uddin v Cooper, 32 AD3d 270 [2006], lv denied 8 NY3d 808 [2007]). In opposition, plaintiff failed to raise a triable issue. While plaintiff submitted evidence of pain, she did not present the requisite contemporaneous quantitative assessment of range of motion limitations based on objective testing (see Rossi v Alhassan, 48 AD3d 270 [2008]; Thompson v Abbasi, 15 AD3d 95, 97 [2005]), nor did she offer competent medical proof in support of her 90/180-day claim.

Upon a search of the record, we dismiss the action as against non-appealing defendant Cabral (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: May 21, 2009