HAND v. BONURA

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

Michael HAND, plaintiff, v. Joseph BONURA, defendant.  (Action No. 1).

Francisco Arsuaga, appellant, v. Joseph W. Bonura, et al., respondents.  (Action No. 2)

Decided: May 29, 2001

LAWRENCE J. BRACKEN, P.J. WILLIAM D. FRIEDMANN, ANITA R. FLORIO and HOWARD MILLER, JJ. Eitan Alexander Ogen, New York, N.Y., for appellant. Martyn, Toher, Esposito & Martyn, Mineola, N.Y. (Lisa Mammone Rossi of counsel), for respondent Michael Hand.

In related actions to recover damages for personal injuries, the plaintiff in Action No. 2 appeals from an order of the Supreme Court, Nassau County (Warshawsky, J.), dated October 13, 2000, which granted the separate motions of the defendants in Action No. 2 for summary judgment dismissing the complaint in that action insofar as asserted against them.

ORDERED that the order is affirmed, with costs to the respondent Michael Hand.

 The respondents established, prima facie, their entitlement to judgment as a matter of law.   In opposition, the appellant failed to raise an issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affirmation of the plaintiff's physician submitted in opposition to the defendants' motions was based on an examination of the plaintiff conducted over three years before those motions were made.   The projections of permanent limitations contained therein have no probative value in the absence of a recent examination (see, Bidetto v. Williams, 276 A.D.2d 516, 713 N.Y.S.2d 764;  Mohamed v. Dhanasar, 273 A.D.2d 451, 711 N.Y.S.2d 733;  Kauderer v. Penta, 261 A.D.2d 365, 689 N.Y.S.2d 190;  Evans v. Mohammad, 243 A.D.2d 604, 663 N.Y.S.2d 273).   Furthermore, the affirmation failed to state what, if any, objective tests were performed to determine the range of motion of the plaintiff's spine (see, Monaco v. Davenport, 277 A.D.2d 209, 715 N.Y.S.2d 731;  Grossman v. Wright, 268 A.D.2d 79, 85, 707 N.Y.S.2d 233;  Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405;  Kauderer v. Penta, supra;  Lobo v. Singh, 259 A.D.2d 523, 684 N.Y.S.2d 907).

 Moreover, the plaintiff's statement that he was unable to return to work for four months following the accident was not supported by any competent medical evidence that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days as a result of the accident (see, Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  Jackson v. New York City Tr. Auth., 273 A.D.2d 200, 708 N.Y.S.2d 469;  Greene v. Miranda, 272 A.D.2d 441, 708 N.Y.S.2d 310;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919;  Bennett v. Reed, 263 A.D.2d 800, 693 N.Y.S.2d 738;  DiNunzio v. County of Suffolk, 256 A.D.2d 498, 499, 682 N.Y.S.2d 406).

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