HUSBANDS v. LEVINE

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

Winston I. HUSBANDS, appellant, v. Patrick LEVINE, et al., respondents.

Decided: December 28, 2010

MARK C. DILLON, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ. V.J. Longhi Associates, P.C. (Breakstone Law Firm, P.C., Bellmore, N.Y. [Jay T. Breakstone], of counsel), for appellant. Bryan Rothenberg, Hicksville, N.Y. (Mitchell E. Pak of counsel), for respondent Patrick Levine. McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for respondents John R. Paul, Jr., and Margaret Paul.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated October 23, 2009, which granted the separate motions of the defendants John R. Paul, Jr., and Margaret Paul, and the defendant Patrick Levine, for summary judgment dismissing the complaint insofar as asserted against them 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 payable to the respondents appearing separately and filing separate briefs.

The defendants, who relied on the same submissions in support of their respective motions, met their prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (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, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

On appeal, the plaintiff limits his claims of serious injury to his right shoulder.   Initially, the plaintiff's hospital records, which were submitted by him in opposition to the defendants' motions, were not certified (see Vasquez v. John Doe # 1, 73 A.D.3d 1033, 905 N.Y.S.2d 188;  Mejia v. DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 722).   The magnetic resonance imaging reports concerning the plaintiff's right shoulder, performed on March 9, 2006, and October 20, 2008, were unaffirmed (see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Vasquez v. John Doe # 1, 73 A.D.3d at 1033, 905 N.Y.S.2d 188;  Lozusko v. Miller, 72 A.D.3d 908, 899 N.Y.S.2d 358).

The affirmed medical reports of Dr. Joseph P. D'Angelo and Dr. Aric Hausknecht failed to raise a triable issue of fact as to whether the plaintiff sustained a serious injury to his right shoulder under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident, because the plaintiff failed to submit competent medical evidence that was contemporaneous with the subject accident which showed initial range-of-motion limitations in his right shoulder that were significant in nature (see Posa v. Guerrero, 77 A.D.3d 898, 911 N.Y.S.2d 82;  Srebnick v. Quinn, 75 A.D.3d 637, 904 N.Y.S.2d 675;  Catalano v. Kopmann, 73 A.D.3d 963, 900 N.Y.S.2d 759;  Bleszcz v. Hiscock, 69 A.D.3d 890, 894 N.Y.S.2d 481;  Taylor v. Flaherty, 65 A.D.3d 1328, 887 N.Y.S.2d 144;  Fung v. Uddin, 60 A.D.3d 992, 876 N.Y.S.2d 469;  Gould v. Ombrellino, 57 A.D.3d 608, 869 N.Y.S.2d 567;  Sorto v. Morales, 55 A.D.3d 718, 868 N.Y.S.2d 67;  Kuchero v. Tabachnikov, 54 A.D.3d 729, 864 N.Y.S.2d 459;  Ferraro v. Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408).

The plaintiff's submissions also failed to set forth competent medical evidence that the injuries he allegedly sustained as a result of the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days following the accident (see Nieves v. Michael, 73 A.D.3d 716, 901 N.Y.S.2d 100;  Sainte–Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).

Accordingly, the Supreme Court should have been granted the defendants' respective motions for summary judgment dismissing the complaint insofar as asserted against them.

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