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Naomi N. Poladian v. Genevieve M. Santoro and MICHAEL E. SANTORO

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


November 26, 2010

NAOMI N. POLADIAN, RESPONDENT,
v.
GENEVIEVE M. SANTORO AND MICHAEL E. SANTORO,
APPELLANTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Charles J. Markey, J.), entered April 15, 2003.

The opinion of the court was delivered by: Present:weston, J.P

Poladian v Santoro

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2010

GOLIA and RIOS, JJ

The order, insofar as appealed from, upon granting defendants leave to renew their prior motion for summary judgment, denied the branches of defendants' motion seeking summary judgment dismissing plaintiff's claims of serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d).

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendants' motion seeking summary judgment dismissing plaintiff's claims of serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d) are granted.

Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident on August 30, 1999. Defendants 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 denied defendants' motion, finding that while defendants had established their prima facie case, plaintiff's submission, in opposition to the motion, of an affirmed narrative report under the name of plaintiff's treating physician was sufficient to raise a triable issue of fact. The case went to trial, at which time the treating physician, plaintiff's witness, testified that the signature appearing on the affirmed narrative report was not his, and that he was unable to attribute causation of plaintiff's injuries to the accident at issue. The Civil Court then granted plaintiff's motion for a mistrial. Subsequently, defendants moved for leave to renew their motion for summary judgment. Plaintiff's submissions in opposition to the motion included an affirmation from a different doctor, who, stating that she had examined plaintiff in 2003 for the purpose of an independent medical evaluation, reported her range of motion studies of plaintiff's cervical spine. Plaintiff's doctor stated that, as a result of the accident, plaintiff had sustained injuries resulting in a "consequential limitation of use" and significant limitation of use of her cervical and lumbar spine. By order entered May 23, 2003, the Civil Court granted defendants leave to renew the prior motion and, upon renewal, granted the branches of defendants' motion seeking summary judgment dismissing plaintiff's claims under the permanent loss of use and 90/180-day categories of serious injury, but denied the branches of defendants' motion seeking summary judgment dismissing plaintiff's claims of serious injury under the permanent consequential limitation of use and significant limitation of use categories, finding that a trial was warranted as to the latter categories. Defendants appeal from so much of the order as denied these branches of their motion.

While the report of plaintiff's examining doctor set forth range of motion limitations in plaintiff's cervical spine, plaintiff failed to proffer competent medical evidence revealing the existence of limitations in her spine that were contemporaneous with the subject accident (see Kublo v Rzadkowski, 71 AD3d 831 [2010]; Yunatanov v Stein, 69 AD3d 708 [2010]; Joseph v A & H Livery, 58 AD3d 688 [2009]; Collado v Satellite Solutions & Electronics of WNY, LLC, 56 AD3d 411 [2008]). The only admissible range of motion findings submitted by plaintiff were based upon an examination that occurred more than three years after the accident (see Collado, 56 AD3d at 411; Suk Ching Yeung v Rojas, 18 AD3d 863 [2005]). Although plaintiff submitted affirmed MRI reports which indicated the existence of bulging discs in her cervical and lumbar spine, the mere existence of herniated or bulging discs is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitation resulting from the injury and its duration (see Acosta v Alexandre, 70 AD3d 735 [2010]; Su Gil Yun v Barber, 63 AD3d 1140 [2009]; Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712 [2009]). Accordingly, the branches of defendants' motion seeking summary judgment dismissing plaintiff's claims of serious injury under the permanent consequential limitation of use and significant limitation of use categories should have been granted.

Weston, J.P., Golia and Rios, JJ., concur. Decision Date: November 26, 2010

20101126

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