Belkys Sosa, etc., Plaintiff–Appellant, v. MILLER (2020)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered July 23, 2018, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff Belkys Sosa's 90/180–day claim, unanimously affirmed, without costs.

Defendants established prima facie entitlement to judgment as a matter of law on the 90/180–day claim.  Defendants submitted the affirmed report of an orthopedic surgeon, showing normal range of motion in plaintiff's cervical and lumbar spine with no evidence of tenderness or spasm, and plaintiff's own records showing only minor limitations in range of motion.  Defendants therefore showed the absence of serious injury that would prevent plaintiff from performing substantially all of her usual and daily customary activities during the relevant time period (see Galarza v. J.N. Eaglet Publ. Group, Inc., 117 A.D.3d 488, 489, 985 N.Y.S.2d 494 [1st Dept. 2014];  Insurance Law § 5102[d] ).  Moreover, plaintiff's bill of particulars noted that she was not confined to her bed or home for any period of time, and plaintiff testified that she was confined to her home for only a few weeks following the accident (see Merrick v. Lopez–Garcia, 100 A.D.3d 456, 457, 954 N.Y.S.2d 25 [1st Dept. 2012] ).

In opposition, plaintiff failed to raise a triable issue of fact.  Her subjective complaints of continuing pain and the inability to work are insufficient to demonstrate a 90/180–day injury without objective support in the record (see Rosa–Diaz v. Maria Auto Corp., 79 A.D.3d 463, 464, 913 N.Y.S.2d 51 [1st Dept. 2010] ).  The statement of plaintiff's physician that she is “disabled” is insufficient to sustain her 90/180–day claim, as this statement related only to her ability to perform her prior work as a mail carrier (see e.g. De La Rosa v. Okwan, 146 A.D.3d 644, 45 N.Y.S.3d 443 [1st Dept. 2017], lv denied 29 N.Y.3d 908, 2017 WL 2367334 [2017] ).  He did not indicate why plaintiff was “disabled” from this job, explain which aspects of the job she could not perform, or address her ability to perform activities of daily living.  Furthermore, the physician's 2012 notation that plaintiff could perform her customary activities as tolerated is at least partially inconsistent with his opinion as to her disability.