Joanne Bailey, appellant, v. II (2009)

In a consolidated action to recover damages for personal injuries, the plaintiff Joanne Bailey appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated January 14, 2009, which granted the motion of the defendants Horton Transportation II, Inc., and Arif Gardashov for summary judgment dismissing the complaint insofar as asserted by her against them 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 Horton Transportation II, Inc., and Arif Gardashov met their prima facie burden of showing that the plaintiff Joanne Bailey 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; see also Giraldo v. Mandanici, 24 A.D.3d 419, 805 N.Y.S.2d 124; Meyers v. Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773). In opposition, Bailey failed to raise a triable issue of fact. In opposition, Bailey principally relied on the affirmation of her treating physician, Dr. Boris Kleyman. That affirmation was insufficient to raise any triable issues of fact. While Kleyman set forth range-of-motion findings with respect to Bailey's right shoulder that were contemporaneous with the accident, he failed to compare those findings to what is normal (see Page v. Belmonte, 45 A.D.3d 825, 846 N.Y.S.2d 351; Malave v. Basikov, 45 A.D.3d 539, 845 N.Y.S.2d 415; Fleury v. Benitez, 44 A.D.3d 996, 845 N.Y.S.2d 101; Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396). Moreover, Kleyman failed to set forth any recent range-of-motion findings concerning Bailey's right shoulder in his affirmation.

As to Bailey's right knee, Dr. Kleyman failed to set forth any range-of-motion findings (see LaMarre v. Michelle Taxi, Inc., 60 A.D.3d 911, 875 N.Y.S.2d 268; Ponciano v. Schaefer, 59 A.D.3d 605, 873 N.Y.S.2d 212; Fiorillo v. Arriaza, 52 A.D.3d 465, 859 N.Y.S.2d 699; Sharma v. Diaz, 48 A.D.3d 442, 850 N.Y.S.2d 634; Porto v. Blum, 39 A.D.3d 614, 833 N.Y.S.2d 245).

With respect to Bailey's lumbar spine, Kleyman noted significant limitations therein based on examinations contemporaneous with the subject accident, as well as recent examinations, but failed to acknowledge the fact that the plaintiff was involved in a prior accident in which she injured her lower back. This failure rendered speculative Kleyman's conclusion that the injuries and limitations he noted with respect to Bailey's lumbar spine were the result of the subject accident (see Joseph v. A & H Livery, 58 A.D.3d 688, 871 N.Y.S.2d 663; Penaloza v. Chavez, 48 A.D.3d 654, 852 N.Y.S.2d 315; Zinger v. Zylberberg, 35 A.D.3d 851, 852, 828 N.Y.S.2d 128; Tudisco v. James, 28 A.D.3d 536, 813 N.Y.S.2d 482; Bennett v. Genas, 27 A.D.3d 601, 813 N.Y.S.2d 446; Allyn v. Hanley, 2 A.D.3d 470, 767 N.Y.S.2d 885).