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Nardine Harvey v. Kenneth Padro

New York Supreme and/or Appellate Courts Appellate Term, First Department


July 6, 2011

NARDINE HARVEY,
PLAINTIFF-APPELLANT,
v.
KENNETH PADRO,
DEFENDANT-RESPONDENT.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), dated November 27, 2009, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment on the issue of liability.

Per curiam.

Harvey v Padro

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ

Order (Elizabeth A. Taylor, J.), dated November 27, 2009, affirmed, with $10 costs.

Defendant established, prima facie, that plaintiff did not sustain a serious injury as a result of the 2004 vehicular accident (see Insurance Law § 5102[d]), through the submission of affirmed reports of medical experts, who, upon examination, found that plaintiff had normal ranges of spinal motion and had recovered without any disability (see D'Antonio v Rothschild, 83 AD3d 509, 510 [2011]; Zhijian Yang v Alston, 73 AD3d 562, 564 [2010]; Moses v Gelco Corp., 63 AD3d 548 [2009]). Defendant also provided plaintiff's deposition testimony in which she acknowledged injuring her back in a previous accident, and returning to work six weeks after the subject accident.

In opposition to defendant's motion, plaintiff failed to raise a triable issue of fact (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Lazarus v Perez, 73 AD3d 528, 271 [2008]). Although plaintiff claimed to experience continuing pain and limitation, and submitted MRIs, performed weeks after the accident, showing herniated cervical discs, the evidence showed that she only "underwent a limited period of physical therapy" and returned to work weeks after the accident (Innocent v Mensah, 56 AD3d 379, 380 [2008]; see Alloway v Rodriguez, 61 AD3d 591, 592 [2009]). The affirmed report of plaintiff's treating doctor, prepared in 2009, was deficient in that its findings (including range of motion measurements) are not supported by contemporaneous medical evidence in the record.

Moreover, plaintiff's doctor, while aware that plaintiff had given a history of a prior automobile accident and back injury, failed to address the possible effect of the prior accident on plaintiff's alleged limitations, rendering his opinion as to causation speculative (see Canelo v Genolg Tr. Inc., 82 AD3d 584, 584-585 [2011]; Zhijian Yang v Alston, 73 AD3d at 564; Cekic v Zapata, 69 AD3d 464 [2010]). Plaintiff also failed to present competent evidence to substantiate her 90/180-day claim (see Simpson v Montag, 81 AD3d 547, 548 [2011]; Weinberg v Okapi Taxi, Inc., 73 AD3d 439 [2010]).Accordingly, summary judgment dismissing the complaint was properly granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: July 06, 2011

20110706

© 1992-2011 VersusLaw Inc.



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