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Rivera v. Honey Express Cab Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 25, 2010

JOSE RIVERA, PLAINTIFF-APPELLANT,
v.
HONEY EXPRESS CAB CORP., ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Paul Wooten, J.), entered February 10, 2009, which granted defendants' motion for summary judgment dismissing the complaint, 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.

Gonzalez, P.J., Mazzarelli, Nardelli, Acosta, Abdus-Salaam, JJ.

112770/05

Plaintiff failed to raise an issue of fact in opposition to defendants' prima facie showing that he did not suffer a serious injury of either a permanent or a nonpermanent nature. While his experts quantified his losses in range of motion in 2007 and 2008 and opined that he suffered permanent injuries that were caused by the subject car accident, none of the experts provided range of motion assessments contemporaneous with the 2003 accident (see Mullings v Huntwork, 26 AD3d 214, 216 [2006]). Moreover, none of the experts addressed plaintiff's 1986 back injury (see Pommells v Perez, 4 NY3d 566, 574-575, 579-580 [2005]).

The motion court properly rejected the unsworn report by plaintiff's chiropractor (see Shinn v Catanzaro, 1 AD3d 195, 197-198 [2003]), which in any event provided no range of motion assessments contemporaneous with the accident.

As to plaintiff's 90/180-day claim, his bill of particulars and deposition testimony indicated that he was not confined to bed and home and did not miss any work following the accident. However, in his affidavit in opposition to the motion, plaintiff failed to raise a question of fact.

We have considered plaintiff's remaining contentions and find them unavailing.

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

20100225

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