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Dean Phillips, Plaintiff-Appellant, Adrian Ward v. Tolnep Limo Inc.

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


October 11, 2012

DEAN PHILLIPS, PLAINTIFF-APPELLANT, ADRIAN WARD,
PLAINTIFF,
v.
TOLNEP LIMO INC., ET AL.,
DEFENDANTS-RESPONDENTS.

Phillips v Tolnep Limo Inc.

Decided on October 11, 2012

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Friedman, Moskowitz, Freedman, Manzanet-Daniels, JJ.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about May 18, 2011, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing plaintiff Dean Phillips' complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants made a prima facie showing of entitlement to judgment as a matter of law as to plaintiff's claims of "permanent consequential" and "significant limitation of use" of his lumbar spine (Insurance Law § 5102[d]). Defendants submitted expert medical reports finding normal ranges of motion, as well as the report of a radiologist who opined that changes shown in an MRI of plaintiff were degenerative.

In opposition, plaintiff failed to raise a triable issue of fact as to his lumbar spine injuries. His physician's measurement of a minor limitation in one plane of range of motion was deficient in raising a triable of fact as to whether plaintiff sustained a serious injury (see Canelo v Genolg Tr., Inc., 82 AD3d 584 [1st Dept 2011]; see also Lattan v Gretz Tr. Inc., 55 AD3d 449 [1st Dept 2008]). Such finding does not amount to a serious, or important, limitation of the use within the meaning of Insurance Law § 5102(d) (see Sone v Quamar, 68 AD3d 566 [1st Dept 2009]).

Plaintiff's bill of particulars and deposition testimony refuted his 90/180-day claim, since he alleged that he was confined to home and bed for one week, after which time he returned to work (see Byong Yol Yi v Canela, 70 AD3d 584 [1st Dept 201]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 11, 2012

CLERK

20121011

© 1992-2012 VersusLaw Inc.



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