Bentley v All-Seasons Servs., Inc.
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 21, 2011
PRESENT: Hunter, Jr., J.P., Schoenfeld, Torres, JJ
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered October 29, 2009, which granted defendants' motion for summary judgment dismissing the complaint.
Order (Elizabeth A. Taylor, J.), entered October 29, 2009, affirmed, with $10 costs.
Defendants made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) in the subject 2003 motor vehicle accident (see Gaddy v Eyler, 79 NY2d 955, 956 ). In support of their summary judgment motion, defendants submitted the affirmed medical reports of an orthopedic surgeon and a neurologist, who upon examination found that plaintiff had recovered from sprain and strain injuries, and that she exhibited normal ranges of motion other than a minor limitation the surgeon attributed to plaintiff's excess weight (see Zhijian Yang v Alston, 73 AD3d 562, 563 ; Amamedi v Archibala, 70 AD3d 449 , lv denied 15 NY3d 713 ). Defendants also submitted plaintiff's deposition testimony wherein she described only minor restrictions of daily activities immediately following the accident, and acknowledged that she was examined and cleared to return to her job as a nurse within months of the accident (see Alloway v Rodriguez, 61 AD3d 591 ; Melindez v Christie, 27 Misc 3d 139[A], 2010 NY Slip Op 50914[U] ).
In opposition, plaintiff failed to raise a triable issue of fact and her claim was properly dismissed for lack of proof of a serious injury (see Gaddy v Eyler, 79 NY2d at 957). The record reflects that plaintiff underwent only a handful of examinations and some medical tests in the several months following the accident. There is no documentation of the physical therapy and chiropractic treatment plaintiff claims to have received (see Thompson v Abbasi, 15 AD3d 95, 99 ; Bent v Jackson, 15 AD3d 46, 48 ). Nor has plaintiff's physician addressed in any manner, much less satisfactorily explained, the effect of pre-existing or intervening conditions on plaintiff's purported symptoms attributed to this accident (see Rosa-Diaz v Maria Auto Corp., 79 AD3d 463, 464 ; Colon v Maldonado, 2010 NY Slip Op 51266[U] ).
Moreover, plaintiff utterly failed to submit competent medical evidence to support her subjective claim that she was unable to perform "substantially all" of her usual and customary daily activities for at least 90 of the 180 days immediately following the accident (Insurance Law § 5102[d]). Plaintiff's claimed inability to work was not documented and, in any event, is not dispositive of the existence of a 90/180-day category injury (see Rosa-Diaz v Maria Auto Corp., 79 AD3d at 463; Weinberg v Okapi Taxi, Inc., 73 AD3d 439 ; Ortiz v Ash Leasing, Inc., 63 AD3d 556, 557 ). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 21, 2011
© 1992-2011 VersusLaw ...