Soto v Cruz

[*1] Soto v Cruz 2009 NY Slip Op 51827(U) [24 Misc 3d 145(A)] Decided on August 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570269/09.

Jonathan Soto, Plaintiff-Appellant,

against

Pedro Cruz, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated April 28, 2008, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), dated April 28, 2008, affirmed, with $10 costs.

Plaintiff's own bill of particulars and deposition testimony, together with the affirmed reports of defendant's medical experts established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Curtis v Brent, 51 AD3d 464 [2008]). The medical reports of plaintiff's experts were unaccompanied by the requisite contemporaneous assessment of range of motion limitations based upon objective testing (see Alicea v Troy Trans, Inc., 60 AD3d 521 [2009]; Thompson v Abbasi, 15 AD3d 95 [2005]; Toulson v Young Han Pae, 13 AD3d 317 [2004]), and failed to show that plaintiff sustained a medically determined injury of a nonpermanent nature which prevented him from performing substantially all activities during the statutory 90/180-day period (see Brantley v New York City Metro. Tr. Auth., 48 AD3d 313 [2008]; Norona v Manhattan and Bronx Surface Tr. Operating Auth., 40 AD3d 480 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 24, 2009