Shepley v. Helmerson

9 Citing cases

  1. SAETIA v. VIP RENOVATIONS CORP.

    2008 N.Y. Slip Op. 32076 (N.Y. Sup. Ct. 2008)

    Dr. Park's affirmation fails to state what, if any, objective tests were performed contemporaneous with the accident ( Nemchyonok v. Ying, 2 AD3d 421 [2d Dept 2003]; Ifrach v. Neiman, 306 AD2d 380 [2d Dept 2003]). Nowhere in Dr. Park's report does he explain how the automobile accident caused plaintiff's injuries (see, Shepley v. Helmerson, 306 AD2d 267 [1st Dept 2003]). As such, the plaintiff failed to submit objective medical proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions of plaintiffs cervical and lumbar spine and left knee.

  2. SAETIA v. VIP RENOVATIONS CORP.

    2008 N.Y. Slip Op. 51633 (N.Y. Sup. Ct. 2008)

    Dr. Park's affirmation fails to state what, if any, objective tests were performed contemporaneous with the accident (Nemchyonok v. Ying , 2 AD3d 421 [2d Dept 2003]; Ifrach v. Neiman, 306 AD2d 380 [2d Dept 2003]). Nowhere in Dr. Park's report does he explain how the automobile accident caused plaintiff's injuries ( see, Shepley v. Helmerson, 306 AD2d 267 [1st Dept 2003]). As such, the plaintiff failed to submit objective medical proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions of plaintiffs cervical and lumbar spine and left knee.

  3. Ciappetta v. Snyder

    CV 15-4427 (JMA)(ARL) (E.D.N.Y. Jan. 22, 2021)   Cited 3 times

    Backis Dec., Exhibit K. In certain circumstance a diminished range of motion could support a finding of a significant limitation, however, the limitation must be significant. See, e.g., Komar v. Showers, 227 A.D.2d 135, 136, 641 N.Y.S.2d 643 (N.Y. App. 1st Dept. 1996) (sprains or strains not sufficient to establish serious injury); Shepley v. Helmerson, 306 A.D.2d 267, 268, 760 N.Y.S.2d 228 (N.Y. App. 2nd Dept. 2003) (cervical strain and mildly diminished range of motion insufficient to establish significant limitation); Shinn v. Catanzaro, 1 A.D.3d 195, 197, 767 N.Y.S.2d 88 (App. Div. 1st Dept. 2003) (defendant met her initial burden by submitting sworn affirmation of examining chiropractor who concluded that neither plaintiff was seriously nor permanently injured).

  4. Scotto v. Suh

    50 A.D.3d 1012 (N.Y. App. Div. 2008)   Cited 13 times

    The reports of Dr. Arovas and Dr. Camp were unsworn, and hence, without probative value ( see Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747, 748). The proffered hospital records merely reflect neck strain, which does not constitute a serious injury within the meaning of Insurance Law § 5102 (d) ( see Washington v Cross, 48 AD3d 457). The affirmation and report of Dr. Khabie failed to proximately relate any particular findings to the subject accident ( see Vishnevsky v Glassberg, 29 AD3d 680, 681; Shepley v Helmerson, 306 AD2d 267). The reports of Dr. Mendoza, Dr. Scott Jones, Dr. Nicholas Jones, and Dr. Petrucci failed to demonstrate cervical spine or left shoulder range of motion limitations roughly contemporaneous with the subject accident ( see D'Onofrio v Floton, Inc., 45 AD3d 525; Morales v Daves, 43 AD3d 1118; Rodriguez v Cesar, 40 AD3d 731, 733).

  5. Colon v. Vargas

    27 A.D.3d 512 (N.Y. App. Div. 2006)   Cited 20 times

    In opposition, the plaintiff failed to raise a triable issue of fact that she sustained a serious injury within the meaning of Insurance Law § 5102 (d) to her mouth or jaw as a result of the subject accident. The medical reports relied upon by the plaintiff were irrelevant to her claims, were not based upon a recent examination of the plaintiff ( see Constantinou v. Surinder, 8 AD3d 323; Kauderer v. Penta, 261 AD2d 365, 366), or did not causally relate any injuries to the subject accident ( see Shepley v. Helmerson, 306 AD2d 267, 268). Moreover, there was no competent medical evidence to support the plaintiff's claim that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days as a result of the subject accident ( see Sainte-Aime v. Ho, 274 AD2d 569, 570; Arshad v. Gomer, 268 AD2d 450).

  6. YB v. Carey

    73 Misc. 3d 1224 (N.Y. Civ. Ct. 2021)

    Where findings of sprains, strains and mildly diminished or no diminution of quantitative range of motion as it is found here for Plaintiff's left foot injury, it has not been deemed to constitute Serious Injury (seeScotto v Suh , 50 AD3d 1012, 1013, 857 NYS 2d 185, 186, 2008 NY App Div LEXIS 3563, *2, 2008 NY Slip Op 3629, 1 [2d Dept 2008] ; Vishnevsky v Glassberg , 29 AD3d 680, 681, 815 NYS2d 152 [2006] ; Shepley v Helmerson , 306 AD2d 267, 760 NYS2d 228 [2003] ). There was but mere mention of contusion to the left foot and painful left toe with acupuncturist noting Oriental diagnosis with no specific treatments beyond icing.

  7. Christian v. Giordano

    2008 N.Y. Slip Op. 32717 (N.Y. Sup. Ct. 2008)

    Dr. Hostin's affirmation fails to state what, if any, objective tests were performed contemporaneous with the accident ( Nemchyonok v. Ying, 2 AD3d 421 [2d Dept 2003]; Ifrach v. Neiman, 306 AD2d 380 [2d Dept 2003]. Nowhere in Dr. Hostin's report does he explain how the automobile accident caused plaintiff's injuries ( see, Shepley v. Helmerson, 306 AD2d 267 (1st Dept 2003]). As such, the plaintiff failed to submit objective medical proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions of plaintiffs cervical and lumbar spine.

  8. Andrews v. McCartan

    2007 N.Y. Slip Op. 32616 (N.Y. Sup. Ct. 2007)

    He also found that there was a greater than average range of motion of the lower extremities with negative meniscal signs bilaterally. Similarly, defendants' examining neurologist found that there was a full range of motion of the plaintiff's neck, and he opined that there was a history of strains to the lumbar spine and right knee which had resolved ( see, Shepley v Helmerson, 306 AD2d 267, 760 NYS2d 228 [2nd Dept 2003]; Puccio v Pazienza, 289 AD2d 316, 734 NYS2d 100 [2nd Dept 2001]). Additionally, defendants' experts opined that plaintiff was not disabled as a result of the accident.

  9. Velasquez v. Skelly

    2007 N.Y. Slip Op. 31362 (N.Y. Misc. 2007)

    tute ( McLaughlin v Rizzo, supra; Manceri v Bowe, 19 AD3d 462, 798 NYS2d 441). Moreover, even if this court were to accept the ARJM as constituting a "normal" range, it appears that Dr. Bernhang's findings show significant limitations of range of motion for cervical flexion, lateral flexion and cervical rotation ( Quinones v E L Transp., Inc., 35 AD3d 577, 826 NYS2d 422). Dr. Bernhang's opinion that the plaintiff's ability to remove his tee shirt demonstrated his ability to use his shoulder for abduction or forward flexion was mere conjecture and speculative ( see, Serrano vCanton, 299 AD2d 703, 749 NYS 2d 591). The Court did not address the sufficiency of Dr. Bernhang's range of motion findings with respect to the plaintiff's shoulders since the plaintiff alleged in the bill of particulars that the injury to his left shoulder was limited to a sprain which is not considered as being a serious injury pursuant to the no-fault statute ( Gaddy v Eyler, 79 NY2d 955, 582 NYS2d 990 [1992]; Shepley v Helmerson, 306 AD2d 267, 760 NYS2d 228 [2003]). However, even if the Court had considered these findings, it would have determined that they were vague and speculative ( Sullivan v Johnson, supra; McLaughlin v Rizzo, supra).