Opinion
2013-06-25
Wilson FRIAS, Plaintiff–Appellant, Franklin C. Guerrero, et al., Plaintiffs, v. SON TIEN LIU, et al., Defendants–Respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants. Kay & Gray, Westbury (Theresa P. Mariano of counsel), for respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants. Kay & Gray, Westbury (Theresa P. Mariano of counsel), for respondents.
ANDRIAS, J.P., FRIEDMAN, SWEENY, SAXE, RICHTER, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered May 22, 2012, which granted defendants' motion for summary judgment dismissing plaintiff Wilson Frias's complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting the affirmed reports of an orthopedic surgeon who examined the alleged injured body parts, listed the tests he performed and recorded range of motion measurements, expressed in numerical degrees and the corresponding normal values, and found no limitations ( see Singer v. Gae Limo Corp., 91 A.D.3d 526, 527, 937 N.Y.S.2d 39 [1st Dept. 2012] ). The surgeon's examination was sufficient, even though he did not use an instrument to measure the ranges of motion ( see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ). In addition, defendants relied on plaintiff's deposition testimony that, among other things, plaintiff was able to return to work as a painter within a week after treatment and ceased treatment within four months after the accident, which demonstrated that the injuries were minor in nature ( see Gaddy v. Eyler, 79 N.Y.2d 955, 957–958, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ), and required an explanation for the gap in treatment ( Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
In opposition, plaintiff failed to raise a triable issue of fact. In particular, plaintiff failed to offer evidence of significant limitations to his neck and shoulder ( see Levinson v. Mollah, 105 A.D.3d 644, 644, 963 N.Y.S.2d 653 [1st Dept. 2013];Moore v. Almanzar, 103 A.D.3d 415, 416, 959 N.Y.S.2d 180 [1st Dept. 2013] ). Plaintiff also failed to tender competent objective medical evidence of an injury to his lumbar spine ( see Thomas v. City of New York, 99 A.D.3d 580, 581, 953 N.Y.S.2d 15 [1st Dept. 2012] ). In addition, he failed to adequately explain his complete cessation of treatment less than four months after the accident ( see Ramkumar v. Grand Style Transp. Enters., Inc., 94 A.D.3d 484, 485, 941 N.Y.S.2d 610 [1st Dept. 2012] ).
Plaintiff's deposition testimony that he was confined to bed and home for about one week after the accident, and that his work day was shortened by an hour, defeats his 90/180–day claim ( see Martin v. Portexit Corp., 98 A.D.3d 63, 68, 948 N.Y.S.2d 21 [1st Dept. 2012] ).