From Casetext: Smarter Legal Research

McIntosh v. N.Y. Found. for Senior Citizens Guardian

Appellate Term of the Supreme Court of New York, First Department
Dec 14, 2005
2005 N.Y. Slip Op. 52043 (N.Y. App. Term 2005)

Opinion

570496/05.

Decided December 14, 2005.

Defendant Sheri Bruder, as Executrix of the Estate of Norma R. Herbin, appeals from an order of the Civil Court, Bronx County (Nelida Malave, J.), entered February 4, 2005, which denied her motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious a "serious injury" (Insurance Law § 5102[d]).

Order (Nelida Malave, J.), entered February 4, 2005 reversed, without costs, defendant Bruder's motion for summary judgment granted, and on a search of the record, defendant New York Foundation for Senior Citizens Guardian Services, Inc.'s cross motion for summary judgment granted. The Clerk is directed to enter judgment in favor of the aforesaid defendants dismissing the complaint and all cross-claims against them.

PRESENT: McCooe, J.P., Davis, Gangel-Jacob, JJ.


Defendants' medical affirmations, detailing the objective tests performed and finding that plaintiff had full range of motion in her cervical spine and had recovered from sprain/strain type injuries to her neck sustained in the vehicular accident, which caused her to miss only two days of work, satisfied their burden of establishing prima facie that plaintiff did not suffer a serious injury ( see Nagbe v. Minigreen Hacking Group, ___ AD3d ___, 802 NYS2d 416 {22 AD3d 326} [2005]; Thompson v. Abbasi, 15 AD3d 95; Copeland v. Kasalica, 6 AD3d 253).

The burden shifted to plaintiff to come forward with admissible evidence to raise a triable issue that she did in fact suffered a serious injury (Insurance Law § 5102[d]). Although a bulging disc may constitute a serious injury, "a plaintiff must still offer some objective evidence of the extent or degree of [her] alleged physical limitations and their duration, resulting from the disc injury" ( Arjona v. Calcano, 7 AD3d 279). Plaintiff failed to provide such evidence. The report of a doctor who treated plaintiff in the near aftermath of the accident is deficient because the reported results of the range of motion tests were not significant or even abnormal. Even if considered, the unsworn report of a chiropractor, based upon a single examination of plaintiff five years after the accident and after a four year gap in treatment, must be regarded as speculative and conclusory on the question of causation, and therefore failed to raise a triable issue ( see Thompson v. Abbasi, supra; Shinn v. Catanzaro, 1 AD3d 195; see also Agramonte v. Marvin, ___ Ad3d ___, 802 NYS2d 420).

Although defendant New York Foundation for Senior Citizens Guardian Services, Inc. did not file a notice of appeal from the denial of its cross motion for summary judgment, this Court may search the record and grant summary judgment to the non-appealing party ( Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 NY2d 106, 110-12).

This constitutes the decision and order of the court.


Summaries of

McIntosh v. N.Y. Found. for Senior Citizens Guardian

Appellate Term of the Supreme Court of New York, First Department
Dec 14, 2005
2005 N.Y. Slip Op. 52043 (N.Y. App. Term 2005)
Case details for

McIntosh v. N.Y. Found. for Senior Citizens Guardian

Case Details

Full title:PEGGY McINTOSH, Plaintiff-Respondent, v. NEW YORK FOUNDATION FOR SENIOR…

Court:Appellate Term of the Supreme Court of New York, First Department

Date published: Dec 14, 2005

Citations

2005 N.Y. Slip Op. 52043 (N.Y. App. Term 2005)
814 N.Y.S.2d 562