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Shapira v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 18, 2010

AMANDA SHAPIRA, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Carol E. Huff, J.), entered September 21, 2009, which granted defendants' motions to dismiss the complaint, and order, same court and Justice, entered October 16, 2008, which denied plaintiff's motion for a new trial, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Sweeny, Nardelli, Freedman, JJ.

111837/03

Plaintiff's failure to present objective evidence of physical limitations attributable to the disc herniations seen on her MRIs is fatal to her claim of serious injury to her spine (Pommells v Perez, 4 NY3d 566, 574 [2005]). As to her claim of significant disfigurement as a result of a nasal fracture, plaintiff's contention that the trial court gave her too short a continuance to obtain the hospital records that would document the fracture is unavailing, since the record demonstrates that the absence of competent evidence at trial was due either to a deliberate tactical decision by her counsel not to procure records that were readily available or to a lack of due diligence on his part (see Matter of Steven B., 6 NY3d 888 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100218

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