GONZALEZ v. COHN (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), dated March 3, 2020.  The order denied the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident is granted.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident.  The defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.  In an order dated March 3, 2020, the Supreme Court denied the motion.  The defendant appeals.

The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 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).  The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the plaintiff's right hip and the cervical and lumbar regions of the plaintiff's spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180).  In opposition, the plaintiff failed to raise a triable issue of fact.  The report of the plaintiff's expert physician, Mark L. Brandon, was insufficient to raise a triable issue of fact, as he failed to identify the method used to measure range of motion and failed to provide the normal ranges of motion in his report (see Dinc v. Shalesi, 208 A.D.3d 558, 559, 172 N.Y.S.3d 713;  Nicholson v. Kwarteng, 180 A.D.3d 695, 696, 115 N.Y.S.3d 707;  Saunders v. Mian, 176 A.D.3d 994, 995, 113 N.Y.S.3d 82;  Radoncic v. Faulk, 170 A.D.3d 1058, 1060, 96 N.Y.S.3d 352).  Contrary to the plaintiff's contention, he failed to allege an injury to his right knee in his bill of particulars, and therefore did not raise a triable issue of fact on this basis (see Martinkus v. Dahmen, 105 A.D.3d 1014, 1015, 963 N.Y.S.2d 378).

Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.

CONNOLLY, J.P., MALTESE, WOOTEN and DOWLING, JJ., concur.