SPRINGER v. ARTHURS

Reset A A Font size: Print

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

Monica SPRINGER, appellant, v. Lynton ARTHURS, et al., respondents.

Decided: October 31, 2005

ROBERT W. SCHMIDT, J.P., SONDRA MILLER, WILLIAM F. MASTRO, ROBERT A. SPOLZINO, and ROBERT J. LUNN, JJ. David B. Calender, Bayside, N.Y., for appellant. Diamond, Cardo, King, Peters & Fodera, New York, N.Y. (Deborah F. Peters of counsel), for respondent Lynton Arthurs. James P. Nunemaker, Jr., Uniondale, N.Y. (Gene W. Wiggins of counsel), for respondent Marie Paul.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruditzky, J.), dated August 31, 2004, which granted the separate motions of the defendants Lynton Arthurs and Marie Paul 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).

ORDERED that the order is affirmed, with one bill of costs.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting the affirmed medical reports of an orthopedist and neurologist who examined the plaintiff for the defendants three years after the subject accident and found that she had no disabilities, deficits, or other limitations (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, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Batista v. Olivo, 17 A.D.3d 494, 795 N.Y.S.2d 54;  Grant v. Fofana, 10 A.D.3d 446, 781 N.Y.S.2d 160). The medical evidence submitted by the plaintiff in opposition, an affirmation of her physician, failed to raise a triable issue of fact.   The plaintiff's physician improperly relied upon unattached and unsworn records and reports by other medical providers (see Mahoney v. Zerillo, 6 A.D.3d 403, 774 N.Y.S.2d 378;  D'Amato v. Mandello, 2 A.D.3d 482, 767 N.Y.S.2d 894;  Williams v. Hughes, 256 A.D.2d 461, 682 N.Y.S.2d 401;  Merisca v. Alford, 243 A.D.2d 613, 663 N.Y.S.2d 853), and failed to set forth the objective medical tests utilized at his most recent examination of the plaintiff which led him to conclude that the plaintiff continued to experience limitations in the functioning and use of her neck and back (see Ersop v. Variano, 307 A.D.2d 951, 763 N.Y.S.2d 482;  Carroll v. Jennings, 264 A.D.2d 494, 694 N.Y.S.2d 458).

Moreover, the plaintiff failed to submit any competent medical evidence which would have shown that she was unable to perform substantially all of her daily activities for not less than 90 of the 180 days immediately following the subject accident as a result of the accident (see Davis v. New York City Tr. Auth., 294 A.D.2d 531, 742 N.Y.S.2d 658;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  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).

Accordingly, the Supreme Court properly granted the defendants' separate motions for summary judgment.

Copied to clipboard