TAYLOR v. TERRIGNO

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

Bessie TAYLOR, Plaintiff-Appellant, v. Nicholas TERRIGNO, Defendant-Respondent.

Decided: March 21, 2006

TOM, J.P., SULLIVAN, NARDELLI, CATTERSON, McGUIRE, JJ. Pontisakos & Rossi, P.C., Roslyn (Michael R. Rossi of counsel), for appellant. Faust Goetz Schenker & Blee LLP, New York (Erika Aljens of counsel), for respondent.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered November 23, 2004, which granted defendant's motion for summary judgment dismissing the complaint, and order, same court and Justice, entered June 6, 2005, which denied plaintiff's motion to renew, unanimously affirmed, without costs.

Defendant satisfied his initial burden on the motion of demonstrating, prima facie, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  He submitted the reports of an orthopedic surgeon, who found that plaintiff's neck and back were normal and that the status of her right shoulder was post-surgery with some residual stiffness and weakness, and a neurologist, who found no objective neurological disability or permanency and diagnosed plaintiff's condition as “subjective shoulder pain” (see Smith v. Brito, 23 A.D.3d 273, 804 N.Y.S.2d 82 [2005] ).   In opposition to the motion, plaintiff, who did not plead or attempt to prove that she sustained a serious injury under the 90/180-day category, failed to meet her burden of raising a material issue of fact (see id.) with the medical submissions that contained no numerical ranges of motion, did not describe the qualitative nature of plaintiff's limitations and did not identify the objective tests used in making a diagnosis (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ).   The new physician's affirmation that plaintiff submitted on her motion to renew was also deficient because, while it set forth measurements for loss of range of motion for plaintiff's right shoulder, it did not identify the objective tests performed in deriving those measurements (see Brown v. Dunlap, 6 A.D.3d 159, 160-161, 774 N.Y.S.2d 147 [2004], revd. on other grounds sub nom. Pommells v. Perez, 4 N.Y.3d 566, 575-578, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).   Accordingly, the motion to renew was properly denied (CPLR 2221[e][2] ).   Unexplained gaps in plaintiff's treatment are also fatal to her claim of serious injury (see Pommells, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005];  Agramonte v. Marvin, 22 A.D.3d 322, 802 N.Y.S.2d 420 [2005] ).