ORTEGA v. MALDONADO

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Supreme Court, Appellate Division, First Department, New York.

Francis ORTEGA, Plaintiff-Appellant, v. Mario Omar MALDONADO, et al., Defendants-Respondents.

Decided: March 22, 2007

TOM, J.P., ANDRIAS, SULLIVAN, WILLIAMS, GONZALEZ, JJ. Akin & Smith, LLC, New York (Ismail S. Sekendiz of counsel), for appellant. Picciano & Scahill, P.C., Westbury (Gilbert J. Hardy of counsel), for respondents.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered February 17, 2006, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants in this no-fault motor vehicle accident case met their burden of establishing, as a matter of law, that plaintiff had not sustained a “serious injury.”   Plaintiff then failed to meet his burden of demonstrating that he had sustained such an injury by submitting objective proof of its nature and degree (Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ).

While plaintiff's expert, a non-treating physician who examined plaintiff in connection with this action, performed certain range of motion tests, there were no affirmations submitted from treating physicians as to plaintiff's condition contemporaneous to the accident, or submission of MRI films or sworn reports from doctors reviewing said films.   The expert referred to unspecified MRI reports, but made no claim that he actually reviewed the films or that the reports were certified (see Perez v. Rodriguez, 25 A.D.3d 506, 508, 809 N.Y.S.2d 15 [2006];  Jeng-Jen Chen v. Marc, 10 A.D.3d 295, 781 N.Y.S.2d 32 [2004] ).   Nor did plaintiff demonstrate, through competent objective proof, “a medically determined injury or impairment of a nonpermanent nature” that would have imposed substantial limitations on his customary daily activities (Insurance Law § 5102[d] ), to an extent greater than some “slight curtailment” (Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982] ).   Finally, plaintiff failed to offer documentary evidence to explain the gap in his treatment (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).

We have considered plaintiff's remaining arguments and find them without merit.