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Norman A. Mclean v. Chase Manhattan Auto Finance Co

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


December 19, 2011

NORMAN A. MCLEAN, RESPONDENT, --
v.
CHASE MANHATTAN AUTO FINANCE CO., DEFENDANT,
v.
CHON U. HO AND MARCELIN PAPILLON, APPELLANTS.

Appeals from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 18, 2010.

McLean v Chase Manhattan Auto Fin. Co.

Decided on December 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: WESTON, J.P., GOLIA and RIOS, JJ

The order, insofar as appealed from by defendant Chon U. Ho, denied his motion for summary judgment dismissing the complaint insofar as asserted against him. The order, insofar as appealed from by defendant Marcelin Papillon, denied his separate motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order is reversed, without costs, and the motion by defendant Chon U. Ho for summary judgment dismissing the complaint insofar as asserted against him and the motion by defendant Marcelin Papillon for summary judgment dismissing the complaint insofar as asserted against him are granted.

Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident. Chon U. Ho and Marcelin Papillon (collectively defendants) separately moved for summary judgment dismissing the complaint insofar as asserted against each of them, respectively, on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court, insofar as is relevant to this appeal, denied the motions, finding that, while defendants had made a prima facie showing of their entitlement to judgment as a matter of law, plaintiff had raised a triable issue of fact.

The Civil Court correctly determined that each defendant had met his prima facie burden of showing that plaintiff did not sustain a serious injury within the meaning of 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, plaintiff failed to raise a triable issue of fact.

Plaintiff failed to submit competent medical evidence that revealed significant limitations in his left knee or lumbar spine that were contemporaneous with the subject accident (see Posa v Guerrero, 77 AD3d 898 [2010]; Srebnick v Quinn, 75 AD3d 637 [2010]). The affirmation of one of plaintiff's treating doctors, Dr. Kaplan, was insufficient in this respect since Dr. Kaplan did not personally examine plaintiff until more than one year after the accident. Furthermore, while Dr. Kaplan relied upon an unaffirmed office record containing the treatment notes of other physicians in the office, he was required to lay a foundation for the admissibility of the office record as a business record (see CPLR 4518 [a]; Wilson v Bodian, 130 AD2d 221, 231 [1987]), but failed to do so. We also find that the affirmations of Dr. Jacob Lichy submitted by plaintiff with his annexed magnetic resonance imaging reports concerning plaintiff's left knee and lumbar spine also failed to raise a triable issue of fact. Those submissions revealed, respectively, a meniscus tear in the left knee and a herniation of the L5-S1 disc. The mere existence of these conditions is not evidence of a serious injury, in the absence of objective evidence of the extent of the alleged physical limitations resulting from these injuries and their duration (see McLoud v Reyes, 82 AD3d 848 [2011]; Lozusko v Miller, 72 AD3d 908 [2010]; Shvartsman v Vildman, 47 AD3d 700 [2008]). Furthermore, plaintiff offered no explanation for the cessation of his medical treatment between July 13, 2000 and May 1, 2002, and between November 5, 2002 and July 2, 2004 (see West v Martinez, 78 AD3d 934 [2010]; Thomas v Weeks, 61 AD3d 961 [2009]; Sapienza v Ruggiero, 57 AD3d 643 [2008]). Plaintiff also failed to proffer competent medical evidence that the injuries which he had allegedly sustained had rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days after the accident (see Nieves v Michael, 73 AD3d 716 [2010]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).

Accordingly, the order is reversed and the motion by defendant Chon U. Ho for summary judgment dismissing the complaint insofar as asserted against him and the motion by defendant Marcelin Papillon for summary judgment dismissing the complaint insofar as asserted against him are granted.

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

Decision Date: December 19, 2011

20111219

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