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Nicholas FIORILLO, appellant, v. Juan C. ARRIAZA, respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (LaMarca, J.), entered March 19, 2007, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
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 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). In opposition, the plaintiff failed to raise a triable issue of fact. The affirmed medical report of the plaintiff's treating physician was without probative value in opposing the motion since he improperly relied on the unsworn reports of others in coming to his conclusions (see Malave v. Basikov, 45 A.D.3d 539, 540, 845 N.Y.S.2d 415; Verette v. Zia, 44 A.D.3d 747, 748, 844 N.Y.S.2d 71; Furrs v. Griffith, 43 A.D.3d 389, 390, 841 N.Y.S.2d 594; see also Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).
Moreover, while the plaintiff's treating physician concluded that the plaintiff sustained significant limitation of use of his left shoulder, the physician failed to set forth what objective tests he performed to arrive at that conclusion (see Murray v. Hartford, 23 A.D.3d 629, 804 N.Y.S.2d 416; Nozine v. Sav-On Car Rentals, 15 A.D.3d 555, 556, 790 N.Y.S.2d 204; Bailey v. Ichtchenko, 11 A.D.3d 419, 420, 782 N.Y.S.2d 781; Kauderer v. Penta, 261 A.D.2d 365, 366, 689 N.Y.S.2d 190). In fact, no range-of-motion testing of the left shoulder was apparent in his report. To the extent that he noted limitation in the plaintiff's cervical spine range of motion, he merely noted that testing showed “reduced” extension. With the exception of a single instance in which he noted that the plaintiff's cervical extension was limited to 50 degrees on August 18, 2004, he provided no quantified findings (see Duke v. Saurelis, 41 A.D.3d 770, 840 N.Y.S.2d 88; Desamour v. New York City Tr. Auth., 8 A.D.3d 326, 777 N.Y.S.2d 706), nor did he compare his findings to the normal range (see Malave v. Basikov, 45 A.D.3d at 540, 845 N.Y.S.2d 415).
In addition, the plaintiff's treating physician did not provide any qualitative assessment of the plaintiff's condition since he failed to compare the plaintiff's limitations in his cervical spine “to the normal function, purpose and use of” that affected region (Toure v. Avis Rent A Car, 98 N.Y.2d at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197). The physician further failed to relate any of the plaintiff's injuries he noted in his report to the subject accident (see Itskovich v. Lichenstadter, 2 A.D.3d 406, 407, 767 N.Y.S.2d 859; Bonner v. Hill, 302 A.D.2d 544, 545, 756 N.Y.S.2d 82). It appears that the finding of “significant limitation” by the plaintiff's treating physician was mere parroting of the statutory language, and thus insufficient to raise a triable issue of fact (see Picott v. Lewis, 26 A.D.3d 319, 320, 809 N.Y.S.2d 541; Mastaccioula v. Sciarra, 11 A.D.3d 434, 435, 782 N.Y.S.2d 770; Giannakis v. Paschilidou, 212 A.D.2d 502, 503, 622 N.Y.S.2d 112).
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Decided: June 03, 2008
Court: Supreme Court, Appellate Division, Second Department, New York.
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FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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