ZAVALA v. ZIZZO (2019)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Charles M. Troia, J.), dated November 17, 2017.  The order granted the defendant's 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) as a result of the subject accident.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in a motor vehicle accident.  The defendant moved 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) as a result of the accident.  The Supreme Court granted the motion, and the plaintiff appeals.

The defendant met her 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 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).  The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine and the plaintiff's right shoulder did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180), and that, in any event, the alleged injuries were not caused by the accident (see Gouvea v. Lesende, 127 A.D.3d 811, 6 N.Y.S.3d 607;  Fontana v. Aamaar & Maani Karan Tr. Corp., 124 A.D.3d 579, 1 N.Y.S.3d 324).

In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff submitted an affirmation from his treating physician, who concluded that the cervical and lumbar regions of the plaintiff's spine and the plaintiff's right shoulder sustained range-of-motion limitations as a result of the accident.  However, the affirmation fails to identify the objective tests that were utilized to measure range of motion, and thus, does not support the limitation conclusion (see Bayk v. Martini, 142 A.D.3d 484, 35 N.Y.S.3d 923;  Schilling v. Labrador, 136 A.D.3d 884, 884–885, 25 N.Y.S.3d 331;  Durand v. Urick, 131 A.D.3d 920, 15 N.Y.S.3d 475).  In addition, the affirmations of the plaintiff's treating physicians failed to address the findings of the defendant's radiologist that the alleged injuries to these body parts were degenerative in nature.  Thus, the conclusions by the plaintiff's treating physicians as to causation were speculative and insufficient to raise a triable issue of fact (see Cavitolo v. Broser, 163 A.D.3d 913, 914, 81 N.Y.S.3d 188;  Franklin v. Gareyua, 136 A.D.3d 464, 465, 467, 24 N.Y.S.3d 304, affd 29 N.Y.3d 925, 49 N.Y.S.3d 651, 71 N.E.3d 1218;  John v. Linden, 124 A.D.3d 598, 599, 1 N.Y.S.3d 274;  Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 993 N.Y.S.2d 1, affd 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471).

Accordingly, we agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint.

RIVERA, J.P., CHAMBERS, COHEN and IANNACCI, JJ., concur.