PICOTT v. Marson D. Sealy, et al., appellants. (2006)

In an action to recover damages for personal injuries, etc., the defendants Marson D. Sealy and Radcliffe M. Straker appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated December 17, 2004, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain serious injuries within the meaning of Insurance Law § 5102(d).

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

 The Supreme Court correctly determined that the defendants failed to meet their initial burden of establishing that the plaintiff Briyana Picott 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, 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 defendants' medical expert noted in his affirmation that his examination of Picott showed “[r]ange of motion of the lumbosacral spine showed complaints of pain beyond 70 degrees of flexion, 20 degrees of extension, 40 degrees of right and left lateral bending and rotation.”   This raised a triable issue of fact as to whether Picott sustained a “significant limitation of use of a body function or system” (Insurance Law § 5102[d];  see McDowall v. Abreu, 11 A.D.3d 590, 782 N.Y.S.2d 866;  Kaminsky v. Waldner, 19 A.D.3d 370, 796 N.Y.S.2d 175;  Meyer v. Gallardo, 260 A.D.2d 556, 688 N.Y.S.2d 624).   Thus, there is no need to review the plaintiff's opposition to the motion (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  Lesane v. Tejada, 15 A.D.3d 358, 790 N.Y.S.2d 44).

 The defendants' submissions of the deposition testimony of the plaintiff Debbie Wright and the affirmed medical report of their examining physician were sufficient to make a prima facie showing that Wright did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Sys., supra.;  Gaddy v. Eyler, supra.;   Batista v. Olivo, 17 A.D.3d 494, 795 N.Y.S.2d 54;  Grant v. Fofana, 10 A.D.3d 446, 781 N.Y.S.2d 160).   Contrary to the determination of the Supreme Court, however, Wright failed to submit sufficient competent medical evidence to raise a triable issue of fact.   The physician's affirmation with respect to Wright was clearly based solely upon her subjective complaints of pain (see Scheer v. Koubek, 70 N.Y.2d 678, 518 N.Y.S.2d 788, 512 N.E.2d 309;  Rudas v. Petschauer, 10 A.D.3d 357, 781 N.Y.S.2d 120;  Coloquhoun v. 5 Towns Ambulette, 280 A.D.2d 512, 720 N.Y.S.2d 385;  Barrett v. Howland, 202 A.D.2d 383, 608 N.Y.S.2d 681), and was obviously tailored to meet the statutory requirements (see Mastaccioula v. Sciarra, 11 A.D.3d 434, 782 N.Y.S.2d 770;  Holder v. Brown, 18 A.D.3d 815, 796 N.Y.S.2d 641;  Watt v. Eastern Investigative Bur., 273 A.D.2d 226, 708 N.Y.S.2d 472;  Carroll v. Jennings, 264 A.D.2d 494, 694 N.Y.S.2d 458).

Additionally, there was no competent medical evidence establishing that Wright was unable to perform substantially all of her daily activities for not less than 90 out of the first 180 days as a result of the subject accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  Davis v. New York City Tr. Auth., 294 A.D.2d 531, 742 N.Y.S.2d 658;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919;  DiNunzio v. County of Suffolk, 256 A.D.2d 498, 499, 682 N.Y.S.2d 406).

Accordingly, the defendants were entitled to summary judgment dismissing the complaint insofar as asserted on behalf of Wright.