Osorio v Rahman

[*1] Osorio v Rahman 2009 NY Slip Op 51697(U) [24 Misc 3d 141(A)] Decided on August 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
.

Jennifer Osorio, Plaintiff-Respondent,570670/08

against

Waliur Rahman, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered June 10, 2008, which denied his motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered June 10, 2008, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant established prima facie that plaintiff did not sustain a serious injury (see Insurance Law §5102[d]), through the affirmed medical reports of an orthopedist, who on examination quantified normal ranges of motion in plaintiff's lumbar and cervical spine, shoulders and left knee, and a radiologist, who opined that MRIs conducted after the vehicular accident revealed degenerative changes in plaintiff's lumbar spine and no post-traumatic injuries to her knee. In opposition, plaintiff failed to raise a triable issue. While plaintiff submitted evidence of bulging and/or herniated discs in her lumbar and cervical spine, and excess fluid in her knee, she failed to submit medical evidence showing the extent of range of motion limitations at the time of the accident (see Ali v Khan, 50 AD3d 454 [2008]). The only evidence of limitations is contained in a report of an orthopedist who examined plaintiff four-and-a-half years after the accident, too remote in time to raise an issue of fact as to whether the limitations were caused by the accident (see Lopez v Simpson, 39 AD3d 420 [2007]). Without objective findings of limitations contemporaneous with the accident, plaintiff's allegations that she had difficulty engaging in certain activities are insufficient to raise a triable issue on her 90/180-day claim (see Brantley v New York City Metro. Tr. Auth., 48 AD3d 313 [2008]), particularly where she admittedly was confined to her home for only two days and returned to work two weeks after the accident.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 04, 2009