TRENT v. NIEWIEROWSKI

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Supreme Court, Appellate Division, Second Department, New York.

Telena TRENT, Plaintiff-Respondent, v. C.B. NIEWIEROWSKI, et al., Defendants-Respondents, Carl R. Schettini, et al., Appellants.

Decided: March 26, 2001

LAWRENCE J. BRACKEN, P.J., SONDRA MILLER, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ. Michael E. Pressman, New York, N.Y. (Richard Nealon of counsel), for appellants Carl R. Schettini and Alison Schettini. Diamond, Paino, Cardo, King, Peters & Fodera (Mauro Goldberg & Lilling, LLP, Great Neck, N.Y. [Barbara D. Goldberg and Christopher Simone] of counsel), for appellant Nicola Duhaney, a/k/a Nicola Bandel. Julio J. Marino, Great Neck, N.Y., for plaintiff-respondent.

In an action to recover damages for personal injuries, the defendants Carl R. Schettini and Alison Schettini appeal, and the defendant Nicola Duhaney, a/k/a Nicola Bandel separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated April 4, 2000, as denied their separate motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the plaintiff-respondent to the appellants appearing separately and filing separate briefs, the motions are granted, the complaint and all cross claims insofar as asserted against the appellants are dismissed, and the action against the remaining defendants is severed.

The appellants established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject automobile accident (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition, the plaintiff failed to submit sufficient evidence to raise a triable issue of fact on that issue.   The affirmation of the plaintiff's physician was insufficient to defeat the appellants' prima facie showing, as it failed to set forth the objective medical tests the physician performed to determine that the plaintiff suffered specifically-quantified restrictions of motion in her back and neck (see, Monaco v. Davenport, 277 A.D.2d 209, 715 N.Y.S.2d 731;  Perovich v. Liotta, 273 A.D.2d 367, 710 N.Y.S.2d 908;  Harewood v. Aiken, 273 A.D.2d 199, 710 N.Y.S.2d 82;  Decayette v. Kreger Truck Renting, 260 A.D.2d 342, 687 N.Y.S.2d 680).   The plaintiff's physician improperly relied upon unsworn medical reports and test results of other physicians in reaching his conclusions (see, Napoli v. Cunningham, 273 A.D.2d 366, 710 N.Y.S.2d 919;   Goldin v. Lee, 275 A.D.2d 341, 712 N.Y.S.2d 154;  Diaz v. Wiggins, 271 A.D.2d 639, 707 N.Y.S.2d 870;  Williams v. Hughes, 256 A.D.2d 461, 682 N.Y.S.2d 401).

Moreover, the plaintiff failed to demonstrate that she was prevented from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see, Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Greene v. Miranda, 272 A.D.2d 441, 708 N.Y.S.2d 310;  Carpluk v. Friedman, 269 A.D.2d 349, 704 N.Y.S.2d 94;  Buonaiuto v. Shulberg, 254 A.D.2d 384, 679 N.Y.S.2d 89).

Therefore, the appellants' motions should have been granted.

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