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Irene Rencher, Appellant v. Kent A. Payen

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


March 21, 2013

IRENE RENCHER, APPELLANT,
v.
KENT A. PAYEN, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 9, 2011, deemed from a judgment of the same court entered October 12, 2011 (see CPLR 5501 [c]).

Rencher v Payen

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 21, 2013

PRESENT: PESCE, P.J., WESTON and SOLOMON, JJ

The judgment, entered pursuant to the September 9, 2011 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, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.

Contrary to plaintiff's sole argument on appeal, in support of his motion for summary judgment, 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 subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Plaintiff alleged that, as a result of the subject accident, she had sustained injuries to the cervical, thoracic and lumbar regions of her spine, her hips, chest, left wrist and left ankle. Defendant provided competent medical evidence establishing, prima facie, that those alleged injuries did not constitute a serious injury within the meaning of Insurance Law § 5102 (d) (see Rodriguez v Huerfano, 46 AD3d 794, 795 [2007]). In addition, defendant met his prima facie burden of establishing that plaintiff had not, as a result of the subject accident, sustained serious injuries which rendered her unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days following the accident (see Insurance Law § 5102 [d]). In support of his motion, defendant submitted, among other things, plaintiff's deposition testimony, in which she admitted that she missed only eight days of work as a result of the accident (see Tinyanoff v Kuna, 98 AD3d 501 [2012]).

In opposition, plaintiff failed to raise a triable issue of fact as to whether she had sustained a serious injury to the cervical, thoracic and lumbar regions of her spine, or her hips, chest, left wrist and left ankle, under the permanent loss of use, permanent consequential limitation of use or the significant limitation of use categories of Insurance Law § 5102 (d). The narrative report of plaintiff's treating doctor was without probative value because it was unsigned and, thus, not properly subscribed and affirmed by him (see CPLR 2106; Burgos v Vargas, 33 AD3d 579 [2006]; Orbesteanu v Malcolm, 30 Misc 3d 137[A], 2011 NY Slip Op 50185[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). The reports of plaintiff's radiologist, while properly affirmed, merely established that the radiologist had observed -- based upon his review of magnetic resonance imaging (MRI) films of plaintiff's thoracic, cervical and lumbar spine -- disc protrusion, herniations and bulges. The reports, however, did not render an opinion on causation and therefore did not raise a triable issue of fact as to these conditions (see Sorto v Morales, 55 AD3d 718 [2008]; Collins v Stone, 8 AD3d 321 [2004]). A second radiologist stated that he had interpreted an MRI of plaintiff's left wrist, found a history of trauma and observed carpal joint fluid. However, the mere existence of such a condition, in the absence of objective medical evidence as to the extent of the alleged physical limitation resulting from the condition and its duration, is not evidence of a serious injury (see Hayes v Vasilios, 96 AD3d 1010 [2012]; McLoud v Reyes, 82 AD3d 848 [2011]).

Furthermore, plaintiff failed to submit competent medical evidence that the injuries she had allegedly sustained as a result of the subject accident rendered her unable to perform substantially all of her daily activities for not less than 90 of the first 180 days following the accident (see Valera v Singh, 89 AD3d 929 [2011]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).

In view of the foregoing, the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint. Accordingly, the judgment is affirmed.

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

Solomon, J., dissents in a separate memorandum.

Solomon, J., dissents and votes to reverse the judgment, vacate the order entered September 9, 2011 and deny defendant's motion for summary judgment dismissing the complaint.

In my view, defendant failed to establish, prima facie, that the alleged injuries did not constitute a serious injury within the meaning of Insurance Law § 5102 (d). Decision Date: March 21, 2013

20130321

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