LOPEZ v. MENDOZA

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

Angel LOPEZ, Plaintiff-Appellant, v. Jose MENDOZA, Defendant-Respondent.

Decided: May 22, 2007

TOM, J.P., MAZZARELLI, MARLOW, NARDELLI, MCGUIRE, JJ. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondent.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered March 30, 2006, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff's expert, a physician who examined him both before and after surgery was performed on his shoulder on June 16, 2004, conducted certain range of motion tests in connection with his subsequent examination of plaintiff in September 2004.   His affirmation was contradicted by the affirmations of physicians who examined plaintiff 13 months thereafter in October 2005.   They stated that their examinations of plaintiff disclosed no range of motion limitations.   Plaintiff submitted no evidence to contradict those later findings, and, accordingly, no triable issue was raised as to whether he had sustained serious injury involving permanency within the meaning of Insurance Law § 5102(d) (see Thompson v. Abbasi, 15 A.D.3d 95, 97, 788 N.Y.S.2d 48 [2005] ).   Nor was there competent objective proof sufficient to raise a triable issue about whether plaintiff sustained, “a medically determined injury or impairment of a nonpermanent nature” (Insurance Law § 5102[d] ) that imposed substantial limitations, as opposed to “slight curtailment,” on his customary daily activities (see Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982] ).   Notably, and consistent with the absence of contemporary evidence contradicting defendant's doctors, the report by plaintiff's expert contemplated “both symptomatic and functional improvement in his condition,” provided plaintiff continued periodic treatment.