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Svetlana Aronov v. David Fowlkes

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


June 27, 2012

SVETLANA ARONOV, APPELLANT, --
v.
DAVID FOWLKES,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered November 9, 2010, deemed from a judgment of the same court entered December 14, 2010 (see CPLR 5501 [c]).

Aronov v Fowlkes

Decided on June 27, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., WESTON and ALIOTTA, JJ

The judgment, entered pursuant to the November 9, 2010 order granting defendant's motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, the Civil Court, by order entered November 9, 2010, granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant 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 accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, plaintiff relied upon, among other things, a medical narrative, MRI and X ray reports, and treatment notes, which were insufficient to raise a triable issue of fact since they were not in admissible form (see Grasso v Angerami, 79 NY2d 813 [1991]; Scheker v Brown, 91 AD3d 751 [2012]; Lively v Fernandez, 85 AD3d 981 [2011]). While plaintiff submitted one properly affirmed medical report, the doctor who had prepared it failed to set forth the objective tests he performed to reach his conclusion that plaintiff had restrictions of motion in her cervical and lumbar spine (see Resek v Morreale, 74 AD3d 1043 [2010]; LaMarre v Michelle Taxi, Inc., 60 AD3d 911 [2009]). In reporting that straight leg raising test was positive bilaterally at 35 degrees, plaintiff's doctor failed to compare his finding to what is normal (see Shirman v Lawal, 69 AD3d 838 [2010]). Furthermore, plaintiff did not proffer competent medical evidence sufficient to raise a triable issue as to whether she sustained a medically determined injury of a nonpermanent nature which prevented her from performing her usual and customary daily activities for 90 of the 180 days following the accident in question (see Valera v Singh, 89 AD3d 929 [2011]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: June 27, 2012

20120627

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