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Manuel Pisfil Gonzales, Respondent, -And- Marilyn Uchuya v. Clenia Tapia

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


June 15, 2011

MANUEL PISFIL GONZALES, RESPONDENT, -AND- MARILYN UCHUYA,
PLAINTIFF,
v.
CLENIA TAPIA, APPELLANT, -AND- "JOHN DOE",
DEFENDANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered October 27, 2009. The order denied defendant Clenia Tapia's motion for summary judgment dismissing the complaint insofar as asserted as against him by plaintiff Manuel Pisfil Gonzales.

Gonzales v Tapia

Decided on June 15, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: STEINHARDT, J.P., GOLIA and RIOS, JJ

ORDERED that the order is reversed, without costs, and defendant Clenia Tapia's motion for summary judgment dismissing the complaint insofar as asserted against him by plaintiff Manuel Pisfil Gonzales is granted.

Plaintiffs commenced this action to recover for serious injuries allegedly sustained in a motor vehicle accident. A motion by Clenia Tapia (defendant) to dismiss the complaint insofar as asserted against him by Marilyn Uchuya was granted on default. Defendant subsequently moved for summary judgment dismissing the complaint insofar as asserted against him by Manuel Pisfil Gonzales (plaintiff) on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court denied the motion, finding that a triable issue of fact existed.

The Civil Court properly determined that defendant had met his prima facie burden of showing that plaintiff did not sustain a serious injury under Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition to the motion, plaintiff failed to raise a triable issue of fact. While plaintiff claimed injuries under the permanent loss of use category of serious injury, plaintiff's chiropractor did not attest to the fact that plaintiff had sustained a total loss of use of a body part which was purportedly injured (see Oberly v Bangs Ambulance, 96 NY2d 295, 297 [2001]; Nesci v Romanelli, 74 AD3d 765 [2010]; Amato v Fast Repair Inc., 42 AD3d 477 [2007]). Plaintiff failed to offer competent medical evidence to demonstrate the existence of significant range of motion limitations in the cervical and lumbar regions of his spine contemporaneous with the subject accident (see Vilomar v Castillo, 73 AD3d 758 [2010]; Kuchero v Tabachnikov, 54 AD3d 729 [2008]). Without such contemporaneous findings, plaintiff could not raise a triable issue of fact under the permanent consequential limitation of use or significant limitation of use categories of serious injury (see Husbands v Levine, 79 AD3d 1098 [2010]; Jack v Acapulco Car Serv., Inc., 72 AD3d 646 [2010]; Taylor v Flaherty, 65 AD3d 1328 [2009]). Finally, plaintiff failed to submit competent medical evidence that the injuries he sustained in the accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the accident (see West v Martinez, 78 AD3d 934 [2010]; Caraballo v Kim, 63 AD3d 976 [2009]).

Accordingly, the order is reversed and defendant Clenia Tapia's motion for summary judgment dismissing the complaint insofar as asserted against him by plaintiff Manuel Pisfil Gonzales is granted.

Steinhardt, J.P., Golia and Rios, JJ., concur.

Decision Date: June 15, 2011

20110615

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