Sanchez v Sanders

[*1] Sanchez v Sanders 2009 NY Slip Op 51498(U) [24 Misc 3d 136(A)] Decided on July 9, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-1033 Q C.

Sharon Sanchez, Appellant,

against

Randolph Sanders, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered April 18, 2008, deemed from a judgment of the same court entered May 7, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 18, 2008 order, which, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment, dismissed the complaint.

Judgment reversed without costs, complaint reinstated, so much of the order entered April 18, 2008 as granted defendant's motion for summary judgment vacated, and defendant's motion for summary judgment granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff failed to meet the threshold requirement of suffering a serious injury under the 90/180-day category.

In this action to recover for serious injuries allegedly sustained in a motor vehicle accident, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Plaintiff opposed the motion and cross-moved for summary judgment on the issue of liability. By order entered April 18, 2008, the Civil Court granted defendant's motion and denied plaintiff's cross motion as moot. As limited by its brief, plaintiff appeals from so much of the order as granted defendant's motion for summary judgment. A judgment dismissing the complaint was subsequently entered pursuant to the order (see CPLR 5501 [c]).

Defendant failed to establish his prima facie case with regard to the permanent [*2]consequential limitation and significant limitation use categories of serious injury. In an affirmed medical report, defendant's neurologist stated that "[m]ovements of the neck and spine are normal," but the expert failed to specify the objective testing he performed to reach his conclusion that there were no neurological problems or limitations (see Giammalva v Winters, 59 AD3d 595 [2009]; Larrieut v Gutterman, 37 AD3d 424 [2007]). Nor did defendant's neurologist set forth any numeric values to quantify his finding of "normal" movements of the neck or spine (see Madatova v Madatov, 27 AD3d 531 [2006]). Furthermore, while the neurologist stated that plaintiff's "leg elevation is 60 degrees on both sides," he failed to compare the findings to normal ranges of motion (see Borelli v Ogno, 36 AD3d 639 [2007]; Browdame v Candura, 25 AD3d 747 [2006]).

The record also shows that, although defendant's orthopedist made a diagnosis of "cervical sprain resolved [and] lumbar sprain resolved," he failed to comment upon his finding, nearly three years after the accident, of diminished range of motion in plaintiff's lumbar spine. As a result, the expert's determination of a restriction in plaintiff's lumbar range of motion as compared to normal belies his conclusion that there was no disability or permanency (see Thomas v Smith, 25 AD3d 786 [2006]; cf. Soleman v Zelinsky, 3 Misc 3d 129[A], 2004 NY Slip Op 50370[U] [App Term, 2d & 11th Jud Dists 2004] [while the defendant's expert noted that MRIs of the plaintiff's back revealed disc bulges, the expert concluded after his examination that the plaintiff had resolved cervical and lumbar injuries]). In the circumstances presented, defendant's evidence was insufficient to establish his prima facie entitlement to judgment as a matter of law with regard to the permanent consequential and significant limitation of use categories of serious injury. Consequently, we do not consider whether plaintiff's opposition papers were sufficient to raise a triable issue of fact thereto (see Guerrero v Bernstein, 57 AD3d 845 [2008]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).

However, we find that defendant established a prima facie case as to the 90/180-day category. By submitting plaintiff's deposition testimony that she was confined to bed for a "couple of days" and that she missed only three or four days of work as a result of her injuries, defendant demonstrated that plaintiff was able to perform "substantially all" of the material acts constituting her customary daily activities for more than 90 days of the first 180 days subsequent to the accident (Insurance Law § 5102 [d]; see Camacho v Dwelle, 54 AD3d 706 [2008]; Hasner v Budnik, 35 AD3d 366 [2006]). Accordingly, the burden shifted to plaintiff to raise a triable issue of fact as to this category of serious injury.

Plaintiff's affidavit was insufficient to raise a triable issue of fact with regard to the 90/180-day category (see Sapienza v Ruggiero, 57 AD3d 643 [2008]). Furthermore, plaintiff failed to proffer competent medical evidence that she had sustained a medically determined injury of a nonpermanent nature, and her self-serving affidavit was insufficient, without more, to create a triable issue of fact (see Uribe-Zapata v Capallen, 54 AD3d 936 [2008]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).

In view of the foregoing, the judgment is reversed, so much of the order as granted defendant's motion for summary judgment is vacated and defendant's motion for summary judgment is granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff failed to meet the threshold requirement of suffering a serious injury under the 90/180-day category. [*3]

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009