NADIM v. GADI INC (2021)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered September 5, 2019, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint based on plaintiff Saiful Nadim's inability to satisfy the serious injury threshold under Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants met their prima facie burden and established that plaintiff did not sustain a serious injury to his lumbar spine allegedly resulting from an accident that occurred in May 2014 by submitting plaintiff's own deposition testimony concerning his activities after the accident and the affirmed reports of a neurologist, orthopedist, and radiologist.  Defendants' orthopedist noted normal range of motion and negative results on various tests and concluded that plaintiff's lumbar spine injury had resolved (see Haniff v. Khan, 101 A.D.3d 643, 643, 958 N.Y.S.2d 89 [1st Dept. 2012]).  Defendants' radiologist concluded that the positive findings in plaintiff's lumbar spine MRI were degenerative in origin, and not causally related to the accident (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 535, 102 N.Y.S.3d 588 [1st Dept. 2019];  Campbell v. Drammeh, 161 A.D.3d 584, 77 N.Y.S.3d 381 [1st Dept. 2018]).  Although the neurologist noted limited range of motion in plaintiff's lumbar spine on examination, she concluded that these findings were based on subjective complaints and not supported by any objective findings, noting that plaintiff demonstrated normal range of motion during spontaneous activities (see Macdelinne F. v. Jimenez, 126 A.D.3d 549, 551, 6 N.Y.S.3d 40 [1st Dept. 2015]).

Assuming that plaintiff adequately addressed the issue of causation, his medical records show at most a minor or insignificant injury that does not constitute a serious injury resulting in significant or permanent limitation in use of his lumbar spine (see Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992]).  Plaintiff submitted medical records reflecting that he had some limited range of motion in the month after the accident but failed to submit any other admissible medical evidence of significant or permanent limitations in his lumbar spine.  Plaintiff submitted the affirmed report of his physician who examined him more than four years later, but that physician's recitation of the range of motion findings was of another orthopedist and therefore constitutes hearsay (see Lee v. Rodriguez, 150 A.D.3d 481, 482, 55 N.Y.S.3d 167 [1st Dept. 2018]).  Furthermore, the lack of evidence of continuing limitations after June 2014, and cessation of treatment after November 2014 at the latest, precludes plaintiff's claim that his lumbar spine injury is permanent (see Holmes v. Brini Tr. Inc., 123 A.D.3d 628, 629, 1 N.Y.S.3d 27 [1st Dept. 2014];  see also Tejada v. LKQ Hunts Point Parts, 166 A.D.3d 436, 437, 88 N.Y.S.3d 156 [1st Dept. 2018]).