O'Connor v Singh

[*1] O'Connor v Singh 2009 NY Slip Op 51060(U) [23 Misc 3d 142(A)] Decided on May 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570441/08.

Lisa O'Connor, Plaintiff-Respondent,

against

Raghbir Singh and Rigani Trans., Inc. a/k/a Rigani Transit, Inc., Defendants-Appellants, -and- Daniel J. Lyons, Defendant.

Defendants Righbir Singh and Rigani Transit, Inc. appeal from an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered April 24, 2008, which denied their motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Julia I. Rodriguez, J.), entered April 24, 2008, reversed, with $10 costs, defendants-appellants' motion for summary judgment granted, and complaint dismissed as against them. The Clerk is directed to enter judgment accordingly.

Defendants met their initial burden of demonstrating that plaintiff did not sustain a "serious injury" (Insurance Law § 5102[d]), based on orthopedic and neurological findings that plaintiff had full and normal range of motion, and a radiologist's findings of preexisting and degenerative conditions in plaintiff's knee (see Chong Sim Kim v Amaya, 51 AD3d 487 [2008]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff provided no competent medical evidence contemporaneous to the vehicular accident showing any limitations to her knee or lumbar spine. Where, as here, the only objective evidence of limitation of motion is contained in a report of a physician who examined the plaintiff years after the accident, the finding is too remote from the event to be probative (see Ali v Khan, 50 AD3d 454 [2008]). Moreover, the medical report relied upon by plaintiff did not address the degenerative and arthritic changes found in plaintiff's knee by one of the defense experts (see Rodriguez v Abdallah, 51 AD3d 590 [2008]; Gorden v Tibulcio, 50 AD3d 460 [2008]). Plaintiff's opposing papers also lacked any medical evidence of the treatment that she allegedly received (see Thompson v Abbasi, 15 AD3d 95, 99 [2005]; Bent v Jackson, 15 AD3d 46, 48 [2005]). Finally, plaintiff failed to submit any [*2]competent medical evidence in support of her 90/180-day claim (see Brantley v New York City Metro. Trans. Auth., 48 AD3d 313 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 29, 2009