RAMIREZ v. PARACHE (2006)

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Agate, J.), dated January 28, 2005, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that they did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Nelcy Rivera individually and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

 The Supreme Court properly determined that the defendant made a prima facie showing that the plaintiff Jonathan Ramirez (hereinafter the infant plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197;   Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176;   Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 46, 789 N.Y.S.2d 281).   In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the infant plaintiff sustained a serious injury.   The affirmation of the infant plaintiff's examining physician was insufficient to establish a triable issue of fact.   While the affirmation was based on a recent examination of the infant plaintiff and noted limitations in the range of motion in his lumbar and cervical spine, the plaintiffs failed to provide any medical proof that was contemporaneous with the subject accident which showed range of motion limitations in his spine (see Ranzie v. Abdul-Massih, 28 A.D.3d 447, 813 N.Y.S.2d 473;  Li v. Woo Sung Yun, 27 A.D.3d 624, 812 N.Y.S.2d 604;  Suk Ching Yeung v. Rojas, 18 A.D.3d 863, 864, 796 N.Y.S.2d 661;  Nemchyonok v. Peng Liu Ying, 2 A.D.3d 421, 421, 767 N.Y.S.2d 811;  Ifrach v. Neiman, 306 A.D.2d 380, 380-381, 760 N.Y.S.2d 866).   Moreover, in this affirmation the infant plaintiff's examining physician impermissibly relied upon the unsworn reports of other doctors in giving his opinion (see Vallejo v. Builders for Family Youth, Diocese of Brooklyn, 18 A.D.3d 741, 742, 795 N.Y.S.2d 712;   Mahoney v. Zerillo, 6 A.D.3d 403, 403, 774 N.Y.S.2d 378;  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 266-267, 627 N.Y.S.2d 765).   In the absence of objective medical evidence of injury, the infant plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact (see Fisher v. Williams, 289 A.D.2d 288, 289, 734 N.Y.S.2d 497).   Furthermore, the plaintiffs failed to proffer competent medical evidence showing that the infant plaintiff was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 570, 712 N.Y.S.2d 133;  Arshadv. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919).

 The Supreme Court, however, erred in finding that the defendant established his prima facie burden with respect to the plaintiff Nelcy Rivera (hereinafter the plaintiff mother).   The defendant's examining orthopedist found limitations in the range of motion of the plaintiff mother's right shoulder (see Kaminsky v. Waldner, 19 A.D.3d 370, 371, 796 N.Y.S.2d 175;  Scotti v. Boutureira, 8 A.D.3d 652, 652, 779 N.Y.S.2d 255;  Omar v. Bello, 13 A.D.3d 430, 430-431, 786 N.Y.S.2d 563;  Grant v. Parsons Coach, Ltd., 12 A.D.3d 484, 485, 784 N.Y.S.2d 647).   Where, as here, the moving party fails to carry his initial burden of establishing his prima facie entitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency of the papers in opposition to the motion (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).