Whitehead v New York City Tr. Auth.

[*1] Whitehead v New York City Tr. Auth. 2010 NY Slip Op 50492(U) [26 Misc 3d 146(A)] Decided on March 19, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-541 Q C.

Marie Whitehead, Appellant,

against

New York City Transit Authority, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered August 5, 2008, deemed from a judgment of the same court entered January 20, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 5, 2008 order granting defendant's motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this action to recover damages for personal 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). The Civil Court granted the motion, and this appeal by plaintiff ensued. A judgment was subsequently entered from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Defendant met its prima facie burden of showing that plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]) by submitting the affirmed report of its examining orthopedist, who found full ranges of motion in plaintiff's right hand as compared to normal ranges of motion. The orthopedist also noted that plaintiff had sustained a prior injury to the same hand.

In opposition to the motion, plaintiff failed to raise a triable issue of fact. While the [*2]report of plaintiff's neurologist stated that his examination seven months after the accident was "consistent with a right hand carpal tunnel syndrome secondary to a trauma," the neurologist failed to set forth any numerical findings concerning plaintiff's right hand (see Barnett v Smith, 64 AD3d 669 [2009]; Shtesl v Kokoros, 56 AD3d 544 [2008]). Furthermore, the neurologist failed to address the injuries which plaintiff had sustained to her right hand in a motor vehicle accident two years prior to the accident at issue. Consequently, his conclusion, that the carpal tunnel syndrome in plaintiff's right wrist was caused by the subject accident, was rendered speculative (see Su Gil Yun v Barber, 63 AD3d 1140 [2009]; Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712 [2009]). While plaintiff submitted an affirmed MRI report revealing a partial tear of the triangular
fibrocartilage of her right wrist, a tear is not evidence of a serious injury "in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration" (Caraballo v Kim, 63 AD3d 976, 978 [2009]; Magid v Lincoln Servs. Corp., 60 AD3d 1008 [2009]; see also Tobias v Chupenko, 41 AD3d 583 [2007]). Additionally, plaintiff's doctor, who had performed a recent medical examination, failed to set forth any objective testing he had conducted to arrive at the conclusion that plaintiff had sustained a serious injury to her right wrist (see Spence v Mikelberg, 66 AD3d 765 [2009]; Sapienza v Ruggiero, 57 AD3d 643 [2008]). Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 19, 2010