TUDISCO v. JAMES (2006)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Berler, J.), dated May 19, 2005, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff Rosanna Tudisco did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

 The defendant made a prima facie showing that the injured plaintiff, Rosanna Tudisco (hereinafter the injured plaintiff), did not sustain a serious injury within the meaning of Insurance Law § 5102(d) through the submission of evidence including her deposition testimony and the affirmed medical reports of the defendant's examining physicians (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The plaintiffs thus were required to come forward with objective medical evidence, based upon a recent examination, to verify the injured plaintiff's subjective complaints of pain and limitation of movement (see Farozes v. Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706;  Ali v. Vasquez, 19 A.D.3d 520, 797 N.Y.S.2d 528).   Neither the report of the injured plaintiff's chiropractor nor the report of her neurologist was sufficient to sustain this burden, since both reports were based upon examinations conducted over one year before the defendant moved for summary judgment (see Murray v. Hartford, 23 A.D.3d 629, 804 N.Y.S.2d 416;  Brown v. Tairi Hacking Corp., 23 A.D.3d 325, 804 N.Y.S.2d 756;  Hernandez v. DIVA Cab Corp., 22 A.D.3d 722, 804 N.Y.S.2d 396;  Farozes v. Kamran, supra ).   Although the plaintiffs also submitted the affirmed report of a physician who examined the injured plaintiff more recently, that physician did not indicate that the injured plaintiff had sustained a fall and injured her neck approximately three months after the subject accident, and did not address the fact that the magnetic resonance imaging test upon which he relied showed degenerative changes in her cervical spine.   Under these circumstances, his conclusion that the injured plaintiff's injuries were causally related to the subject accident was speculative (see Allyn v. Hanley, 2 A.D.3d 470, 767 N.Y.S.2d 885;  Ifrach v. Neiman, 306 A.D.2d 380, 760 N.Y.S.2d 866;  Lorthe v. Adeyeye, 306 A.D.2d 252, 760 N.Y.S.2d 530;  see also Brown v. Tairi Hacking Corp., supra ).