Bhagwandin v Gjonbalaj

[*1] Bhagwandin v Gjonbalaj 2009 NY Slip Op 52640(U) [26 Misc 3d 128(A)] Decided on December 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570503/09.

Esther Bhagwandin, Plaintiff-Respondent,

against

Shpen Gjonbalaj, Defendant-Appellant.

Defendant, as limited by his brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), dated December 24, 2008, which denied his motion for summary judgment.

Per Curiam.

Order (Donald A. Miles, J.), dated December 24, 2008, insofar as appealed from, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In opposition, plaintiff, whose appellate brief addresses only her claim that she sustained a serious injury to her lumbar spine, failed to raise any triable issue. Plaintiff offered no objective medical findings contemporaneous with the motor vehicle accident showing any significant range of motion restrictions to her lumbar spine (see Valentin v Pomilla, 59 AD3d 184, 185 [2009]; Thompson v Abbasi, 15 AD3d 95, 98 [2005]; see also Taylor v Flaherty, 65 AD3d 1328 [2009]). Notably, some three months after the accident when plaintiff stopped receiving medical treatment for the injuries she claimed were caused by the accident, plaintiff was experiencing only minor limitations of motion in her spine, limitations that her treating physician characterized as "minimal." We note that an independent basis exists for dismissing plaintiff's claim under the 90/180-day category of serious injury. Plaintiff was not confined to her bed or her home at any time after the accident and continued to work at two physically demanding nursing jobs (see Gemini v Christ, 61 AD3d 477 [2009]; Elias v Mahlah, 58 AD3d 434 [2009]; Taylor v Vasquez, 58 AD3d 406 [2009]).

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