LEA v. CUCUZZA (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated June 27, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants established prima facie 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).   Any restrictions in the plaintiff's range of motion were attributed by the defendants' examining neurologist to pre-existing degenerative changes noted on radiologic films, and were not causally related to the subject accident (see Meyers v. Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49, 789 N.Y.S.2d 281;  McNeil v. Dixon, 9 A.D.3d 481, 482, 780 N.Y.S.2d 635).

In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Cohen v. A One Prods., Inc., 34 A.D.3d 517, 824 N.Y.S.2d 169).   The plaintiff's orthopedist did not examine the plaintiff for the first time until more than four years after the accident, so that neither he nor the plaintiff proffered competent medical evidence of initial range of motion restrictions contemporaneous with the accident (see Borgella v. D & L Taxi Corp., 38 A.D.3d 701, 834 N.Y.S.2d 199;  Iusmen v. Konopka, 38 A.D.3d 608, 609, 831 N.Y.S.2d 530;  Earl v. Chapple, 37 A.D.3d 520, 521, 830 N.Y.S.2d 275).   Were the report of the defendants' ear, nose, and throat physician proffered by the plaintiff in opposition to the motion for summary judgment admissible (accord Positko v. Krawiec, 6 A.D.3d 517, 518, 774 N.Y.S.2d 395;  Mantila v. Luca, 298 A.D.2d 505, 748 N.Y.S.2d 511;  Pagano v. Kingsbury, 182 A.D.2d 268, 271, 587 N.Y.S.2d 692), it would be insufficient to defeat the motion as its conclusions were equivocal (see Matter of Milea v. Easy Appliances Div., Murray Corp., 29 A.D.2d 730, 731, 286 N.Y.S.2d 522;   Duffen v. State of New York, 245 A.D.2d 653, 654, 665 N.Y.S.2d 978) and the report failed to qualitatively assess how the plaintiff's alleged exacerbated vertigo compared to the degree of vertigo experienced prior to the accident (see Creech v. Walker, 11 A.D.3d 856, 857, 784 N.Y.S.2d 655;   Suarez v. Abe, 4 A.D.3d 288, 289, 772 N.Y.S.2d 317).

The plaintiff's remaining contentions are without merit.