Appeals from an order and an amended order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered, respectively, September 8, 2008 and August 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2010
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
The order and the amended order, insofar as appealed from, denied defendants' motion for summary judgment dismissing the complaint.
ORDERED that the appeal from the order entered September 8, 2008 is dismissed, as said order was superseded by the amended order entered August 11, 2009; and it is further,
ORDERED that the amended order, insofar as appealed from, is reversed, without costs, and defendants' motion for summary judgment dismissing the complaint is granted.
Plaintiffs commenced this action to recover for personal injuries allegedly sustained by Leonardo Mata in a motor vehicle accident on or about June 9, 2001 and for loss of services. Defendants moved for summary judgment dismissing the complaint on the ground that Leonardo Mata did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court granted defendants' motion on default. Plaintiffs then moved for an order vacating the default and for an affirmative finding that Leonardo Mata had suffered serious injuries. Defendants opposed the motion. By order entered September 8, 2008, subsequently amended by order entered August 11, 2009, the Civil Court granted plaintiffs' motion to vacate their default and, upon consideration de novo of defendants' motion for summary judgment, denied defendants' motion, finding that plaintiffs' evidence was sufficient to raise a triable issue of fact. This appeal by defendants ensued.
No issue is raised with regard to the Civil Court's determination that plaintiffs made a sufficient showing to justify vacating the default or with regard to its determination that defendants satisfied their prima facie burden of showing that Leonardo Mata did not sustain a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345 ; Gaddy v Eyler, 79 NY2d 955 ). Contrary to the Civil Court's further finding, however, plaintiffs failed to raise a triable issue of fact in opposition to defendants' motion. It is well established that any subjective complaints of pain and limitation of motion must be substantiated by verified objective medical findings based on a recent examination (see Tudisco v James, 28 AD3d 536 ; Young v Russell, 19 AD3d 688 ). The affirmed narrative reports of plaintiffs' examining physician, Dr. Agustin Sanchez, were insufficient to satisfy this burden, since the reports were based upon medical examinations conducted more than one year before plaintiffs made their motion. Furthermore, Dr. Sanchez's affirmed narrative reports did not address the fact that plaintiff had injured his neck and back in a subsequent accident in 2003. Therefore, the doctor's conclusion that the limitations he noted in Mr. Mata's cervical spine were caused by the subject accident was rendered speculative (see Vickers v Francis, 63 AD3d 1150 ; Maffei v Santiago, 63 AD3d 1011 ; Jules v Calderon, 62 AD3d 958 ; Berkowitz v Taylor, 47 AD3d 740 ). Plaintiffs also failed to come forward with competent medical evidence to demonstrate the existence of a significant range of motion limitation in the cervical or lumbar regions of Mr. Mata's spine that was contemporaneous with the subject accident (see Simanovskiy v Barbaro, 72 AD3d 930 ; Caraballo v Kim, 63 AD3d 976 ). Plaintiffs submitted Dr. Sanchez's initial evaluation report, which was unaffirmed and, thus, insufficient to raise a triable issue of fact (see Grasso v Angerami, 79 NY2d 813 ; Vilomar v Castillo, 73 AD3d 758 ; Ranford v Tim's Tree & Lawn Serv., Inc., 71 AD3d 973 ).
Furthermore, plaintiffs failed to proffer competent medical evidence that Mr. Mata sustained a medically determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for 90 of the 180 days following the subject accident (see Bleszcz v Hiscock, 69 AD3d 890 ; Piperis v Wan, 49 AD3d 840 ; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535 ). Finally, neither plaintiffs nor Dr. Sanchez adequately explained the gaps in Mr. Mata's treatment (see Pommells v Perez, 4 NY3d 566, 574 ; Milosevic v Mouladi, 72 AD3d 1036 ; Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712 ).
Accordingly, defendants' motion for summary judgment should ...