Ferguson v Navarro

[*1] Ferguson v Navarro 2009 NY Slip Op 52214(U) [25 Misc 3d 134(A)] Decided on October 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-1766 Q C.

Sheldon Ferguson, Respondent-Appellant, -and-

against

Tiffany Navarro, Respondent, Juan Abreu, Appellant-Respondent.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Carolyn E. Wade, J.), entered May 27, 2008. The order, insofar as appealed from by defendant, denied his motion for summary judgment dismissing the complaint on the ground that plaintiffs did not satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d), and, insofar as cross-appealed from by plaintiff Sheldon Ferguson, denied his cross motion for summary judgment dismissing the complaint as to plaintiff Tiffany Navarro on the ground that Navarro did not sustain a serious injury.

ORDERED that the order, insofar as appealed from by defendant, is reversed without costs and the motion by defendant for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that the order, insofar as cross-appealed from by plaintiff Sheldon Ferguson, is affirmed without costs.

Plaintiffs commenced this action to recover damages for personal injuries allegedly sustained in a motor vehicle accident. Defendant answered the complaint and asserted a counterclaim against plaintiff Sheldon Ferguson. Thereafter, defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs had not sustained a serious injury [*2]within the meaning of Insurance Law § 5102 (d). Plaintiff Sheldon Ferguson cross-moved for summary judgment, inter alia, dismissing the complaint as to Tiffany Navarro on the threshold issue. The Civil Court denied defendant's motion and Ferguson's cross motion. This appeal by defendant and cross appeal by Ferguson ensued.

Contrary to the determination of the Civil Court, the reports of defendant's radiologist were properly affirmed and had probative value. The radiologist referred to CPLR 2106, which contains the phrase "under the penalties of perjury," and she also affirmed the truth of the statements (see John H. Dair Bldg. Constr. Co. v Mayer, 31 AD2d 835 [1969]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see generally People v Sullivan, 56 NY2d 378 [1982]). Consequently, defendant properly relied upon said radiological reports. Defendant's motion papers satisfied his
prima facie burden of showing that plaintiffs had not sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Defendant's submissions included affirmed medical reports which showed that both plaintiffs had full ranges of motion in their cervical and lumbar spines and other areas tested during independent medical examinations. Additionally, by submitting plaintiffs' deposition testimony, defendant demonstrated that plaintiffs were able to perform "substantially all" of the material acts constituting their 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]).

Plaintiffs failed to raise a triable issue of fact in opposition to the motion. While the affirmed medical reports of plaintiffs' orthopedist showed limitations in their respective ranges of motion, plaintiffs failed to proffer admissible objective medical evidence revealing the existence of range of motion limitations that were contemporaneous with the subject accident (see Niles v Lam Pakie Ho, 61 AD3d 657 [2009]; Washington v Mendoza, 57 AD3d 972 [2008]). The orthopedist also failed to explain the gap between the time Sheldon Ferguson stopped receiving electrical stimulation and chiropractic and acupuncture treatments, and his examination on November 17, 2007 (see Pommells v Perez, 4 NY3d 566 [2005]; Garcia v Lopez, 59 AD3d 593 [2009]). Furthermore, plaintiffs failed to submit competent medical evidence that the injuries they had allegedly sustained rendered them unable to perform substantially all of their daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Su Gil Yun v Barber, 63 AD3d 1140 [2009]; Uribe-Zapata v Capallan, 54 AD3d 936 [2008]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). Finally, while plaintiffs' radiologist reported that the MRIs of Ferguson's cervical and lumbar spine, and Navarro's cervical spine, showed limitations, the radiologist expressed no opinion as to either plaintiff with respect to causation (see Ferber v Madorran, 60 AD3d 725 [2009]; Collins v Stone, 8 AD3d 321 [2004]). Accordingly, defendant's motion for summary judgment dismissing the complaint should have been granted.

Since plaintiff Tiffany Navarro asserted no claim against plaintiff Sheldon Ferguson, Ferguson's cross motion for summary judgment dismissing the complaint as to plaintiff Tiffany Navarro should have been denied on the ground that no actual controversy existed between them (see Matter of Javier R., 43 AD3d 1, 2 [2007], citing Matter of Hearst Corp. v Clyne, 50 NY2d 707 [1980]). Accordingly, so much of the order as denied Ferguson's cross motion is affirmed, albeit on other grounds. [*3]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 23, 2009