GARCIA v. Antonio Alvarez, et al., appellants. (2009)

In an action to recover damages for personal injuries, the defendants Antonio Alvarez and Ceferino S. Hurtado appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated January 23, 2008, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs payable by the respondent to the appellants, the motion of the defendants Antonio Alvarez and Ceferino S. Hurtado for summary judgment dismissing the complaint insofar as asserted against them is granted and, upon searching the record, summary judgment is awarded to the defendant Santiago Lopez dismissing the complaint insofar as asserted against him.

 The appellants Antonio Alvarez and Ceferino S. Hurtado 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).   In opposition, the plaintiff failed to raise a triable issue of fact.   The report of Dr. Charles Cooper regarding the magnetic resonance imaging (hereinafter MRI) of the plaintiff's left shoulder was without probative value in opposing the appellants' motion since it was unaffirmed (see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Uribe-Zapata v. Capallan, 54 A.D.3d 936, 864 N.Y.S.2d 118;  Patterson v. N.Y. Alarm Response Corp., 45 A.D.3d 656, 850 N.Y.S.2d 114;   Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71;  Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396;  Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).

 The affirmation of Dr. Bella Sandler failed to raise a triable issue of fact.   While Dr. Sandler noted significant limitations in the range of motion of the plaintiff's cervical spine based on an examination conducted on June 22, 2006, which was over four years after the subject accident, neither the plaintiff nor Dr. Sandler proffered any competent medical evidence that revealed the existence of range of motion limitations that were contemporaneous with the accident (see Leeber v. Ward, 55 A.D.3d 563, 865 N.Y.S.2d 614;  Ferraro v. Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408;  D'Onofrio v. Floton, Inc., 45 A.D.3d 525, 845 N.Y.S.2d 421).

The affirmed MRI reports of Dr. Robert Scott Schepp concerning the plaintiff's lumbar spine merely indicated that as of May 16, 2002, the plaintiff had a herniated disc at L4-5, and bulging discs at L3-4 and L5-S1. As to the MRI of the cervical spine, on April 27, 2002, Dr. Schepp noted the existence of osteophyte formations at C3-4, C4-5, C5-6 and C6-7. He did not observe any disc herniations or disc bulges.   Dr. Schepp did not express any opinion as to the cause of the herniated disc and bulging discs in the lumbar spine, or the osteophyte formations throughout the cervical spine (see Collins v. Stone, 8 A.D.3d 321, 778 N.Y.S.2d 79).

The plaintiff further failed to adequately explain the gap between the time she stopped treatment and her most recent examination by Dr. Sandler on June 22, 2006 (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Berktas v. McMillian, 40 A.D.3d 563, 835 N.Y.S.2d 388;  Waring v. Guirguis, 39 A.D.3d 741, 834 N.Y.S.2d 290;  see also Mullings v. Huntwork, 26 A.D.3d 214, 810 N.Y.S.2d 443).

 The plaintiff failed to submit competent medical evidence that the injuries she allegedly sustained in the subject accident rendered her unable to perform substantially all of her usual and customary activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Rabolt v. Park, 50 A.D.3d 995, 858 N.Y.S.2d 197;  Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 846 N.Y.S.2d 613;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).

 This Court has the authority to search the record and award summary judgment to a nonappealing party with respect to an issue that was the subject of the motion before the Supreme Court (see Michel v. Blake, 52 A.D.3d 486, 859 N.Y.S.2d 688;  Marrache v. Akron Taxi Corp., 50 A.D.3d 973, 856 N.Y.S.2d 239;  Colon v. Vargas, 27 A.D.3d 512, 514, 811 N.Y.S.2d 755;  cf. Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429-430, 654 N.Y.S.2d 335, 676 N.E.2d 1178).   Upon searching the record, we award summary judgment to the defendant Santiago Lopez dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of the no-fault statute (see CPLR 3212[b] ).