James Mosely, plaintiff-respondent v. Sonya Smith, appellant.

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

Mark SMITH, plaintiff, James Mosely, plaintiff-respondent v. Aaron ASKEW, et al., defendants-respondents, Sonya Smith, appellant.

Decided: September 27, 1999

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN and SANDRA J. FEUERSTEIN, JJ. Harms, Della Jacono & Finneran (John M. Denby, East Setauket, N.Y., of counsel), for appellant. James J. Killerlane (David Samel, New York, N.Y., of counsel), for plaintiff-respondent.

In a negligence action to recover damages for physical injuries, the defendant Sonya Smith appeals from an order of the Supreme Court, Westchester County (Cowhey, J.), entered February 18, 1999, which denied her motion for summary judgment dismissing so much of the complaint as is alleged on behalf of the plaintiff James Mosley and all cross claims arising therefrom, insofar as asserted against her.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, so much of the complaint as is alleged on behalf of James Mosley and all cross claims arising therefrom are dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.

The appellant made a prima facie showing of entitlement to judgment as a matter of law.   In opposition, the plaintiff James Mosley failed to raise an issue of fact as to whether he suffered a serious physical injury within the meaning of Insurance Law § 5102(d).   Mosley failed to submit any affirmations or affidavits of his treating physicians, or medical records in an admissible form indicating what treatment, if any, he received for his alleged injuries in the eight-year period between the time of the accident and the examination conducted by his expert.   In addition, Mosley's expert failed to set forth what objective tests he performed in arriving at his conclusions concerning alleged restrictions in Mosley's range of motion (see, Kauderer v. Penta, 261 A.D.2d 365, 689 N.Y.S.2d 190;  Lobo v. Singh, 259 A.D.2d 523, 684 N.Y.S.2d 907), failed to explain the eight-year gap between the accident and his examination of Mosley, and he failed to set forth the treatment, if any, that Mosley received for his alleged injuries during that time (see, Bandoian v. Bernstein, 254 A.D.2d 205, 679 N.Y.S.2d 123;  Williams v. Ciaramella, 250 A.D.2d 763, 673 N.Y.S.2d 186;  Miller v. Donohue, 250 A.D.2d 825, 671 N.Y.S.2d 1016;  Cacaccio v. Martin, 235 A.D.2d 384, 652 N.Y.S.2d 74).

In addition, Mosley's expert improperly relied on an inadmissible report of a Magnetic Resonance Imaging test performed approximately three years after the accident (see, Decayette v. Kreger Truck Renting, Inc., 260 A.D.2d 342, 687 N.Y.S.2d 680;  Lobo v. Singh, supra;  Bandoian v. Bernstein, supra).   Accordingly, in light of the evidence submitted by the appellant which demonstrated that Mosley did not suffer a serious injury, her motion must be granted.


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