PORTO v. BLUM (2007)

In an action to recover damages for personal injuries and property damages, the defendants appeal from an order of the Supreme Court, Kings County (Rivera, J.), dated September 29, 2006, which denied their 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).

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 first cause of action, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, with costs to the defendants.

 The defendants' evidence, which consisted of the affirmed medical report of their examining neurologist and the plaintiff's bill of particulars, was sufficient to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (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;  Yakubov v. CG Trans Corp., 30 A.D.3d 509, 817 N.Y.S.2d 353;  Bell v. Rameau, 29 A.D.3d 839, 814 N.Y.S.2d 534;  Collins v. Stone, 8 A.D.3d 321, 778 N.Y.S.2d 79).   In opposition, the plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury.   The affidavit of his treating physician failed to note any range of motion limitations in the plaintiff's left shoulder and lumbar spine that resulted from the subject accident (see Ramirez v. Parache, 31 A.D.3d 415, 416, 818 N.Y.S.2d 238;  Ranzie v. Abdul-Massih, 28 A.D.3d 447, 448, 813 N.Y.S.2d 473;  Li v. Woo Sung Yun, 27 A.D.3d 624, 625, 812 N.Y.S.2d 604).   Furthermore, the plaintiff's physician improperly relied upon the unsworn magnetic resonance imaging report of another physician (see Felix v. New York City Tr. Auth., 32 A.D.3d 527, 528, 819 N.Y.S.2d 835;  Baksh v. Shabi, 32 A.D.3d 525, 820 N.Y.S.2d 327;  Vishnevsky v. Glassberg, 29 A.D.3d 680, 681, 815 N.Y.S.2d 152), and failed to set forth the objective medical tests utilized at his most recent examination of the plaintiff that led him to determine that the plaintiff sustained limitations of motion in his left shoulder (see Cardillo v. Xenakis, 31 A.D.3d 683, 684, 820 N.Y.S.2d 85;  Springer v. Arthurs, 22 A.D.3d 829, 830, 803 N.Y.S.2d 170;  Nelson v. Amicizia, 21 A.D.3d 1015, 1016, 803 N.Y.S.2d 87).   Although the plaintiff's bill of particulars does not raise this particular issue, we note that his complaint alleged that he had been unable to attend to his regular duties.   Nevertheless, the plaintiff failed to raise a triable issue of fact as to whether he was prevented from performing substantially all of his usual activities for at least 90 of the first 180 days following the subject accident (see Ranzie v. Abdul-Massih, supra at 448-449, 813 N.Y.S.2d 473).

The Supreme Court, however, properly denied that branch of the defendants' motion which was for summary judgment dismissing the second cause of action to recover property damages (see Pajda v. Pedone, 303 A.D.2d 729, 730, 757 N.Y.S.2d 452;  McCauley v. Ross, 298 A.D.2d 506, 507, 748 N.Y.S.2d 409;   Yaraghi v. Zeller, 286 A.D.2d 765, 730 N.Y.S.2d 517).