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Rivera v. Gonzalez

Supreme Court of New York, First Department

June 13, 2013

Luis Rivera, Plaintiff-Appellant,
v.
Miguel A. Gonzalez, et al., Defendants-Respondents.

Mitchell Dranow, Sea Cliff, for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn(Stacy R. Seldin of counsel), for respondents.

Tom, J.P., Friedman, Freedman, Feinman, JJ.

Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered March 7, 2012, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

In opposition to defendants' prima facie showing that plaintiff did not suffer a serious injury to his lumbar spine in a March 2007 automobile accident, plaintiff submitted an affirmed report by his radiologist finding a herniated lumbar disc. That finding alone is insufficient to establish a serious injury; additional objective medical evidence of significant physical limitations resulting from the herniation is required (Pommells v Perez, 4 N.Y.3d 566, 574 [2005]; Wetzel v Santana, 89 A.D.3d 554, 555 [1st Dept 2011]). Plaintiff also presented an affirmation by his initial treating physician, who found range of motion limitations within weeks after the accident. However, plaintiff's medical records show that, two months after the subject accident, he had only insignificant limitations in range of motion (see Phillips v Tolnep Limo Inc., 99 A.D.3d 534, 534 [1st Dept 2012]). The affirmed reports of Dr. Shahid Mian, an orthopedist who examined plaintiff nearly two years after the accident, in March 2009, and again in 2011, are insufficient to raise an issue of fact because he failed to compare his measurements to normal ranges of motion (Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 350 [2002]; Soho v Konate, 85 A.D.3d 522, 523 [1st Dept 2011]). Nor did he provide any explanation for any decrease in mobility following plaintiff's improvement in 2007 (see e.g. Jno-Baptiste v Buckley, 82 A.D.3d 578 [1st Dept 2011]).

We have considered plaintiff's remaining contentions and find them unavailing.


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