MITCHELL v. TRANSIT INC (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated January 31, 2022.  The order granted the defendants' 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 affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident.  The defendants 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 subject accident.  In an order dated January 31, 2022, the Supreme Court granted the motion.  The plaintiff appeals.

The defendants met their 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 subject accident (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, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).  The defendants submitted, among other things, a report of an orthopedic expert, who conducted a physical examination of the plaintiff and measured her range of motion using a goniometer, an objective test instrument.  The report established, prima facie, that the alleged injuries to the plaintiff's left shoulder and the cervical, thoracic, and lumbar regions of her 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 (see Wettstein v. Tucker, 178 A.D.3d 1121, 112 N.Y.S.3d 557).  The report of the plaintiff's expert was insufficient to raise a triable issue of fact, as the expert failed to identify the method used to measure the plaintiff's range of motion in his report (see Gonzalez v. Cohn, 224 A.D.3d 667, 204 N.Y.S.3d 561;  Gersbeck v. Cheema, 176 A.D.3d 684, 686, 107 N.Y.S.3d 705).

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

We need not reach the parties' remaining contentions in light of our determination.

BARROS, J.P., FORD, VOUTSINAS and LANDICINO, JJ., concur.