SHAM v. B CHIMNEY CLEANING

18 Citing cases

  1. Perl v. Meher

    74 A.D.3d 930 (N.Y. App. Div. 2010)   Cited 51 times   1 Legal Analyses
    In Perl and Travis, all of the Appellate Division Justices concluded, as do we, that the evidence offered in support of defendants' summary judgment motions sufficed to shift to plaintiffs the burden of coming forward with evidence to raise an issue of fact.

    These requirements are applied to defendants seeking summary judgment, as well as to plaintiffs opposing summary judgment. The plaintiffs are also required to demonstrate restricted range of motion based on findings both contemporaneous to the accident ( see Stevens v Sampson, 72 AD3d 793; Jack v Acapulco Car Serv., Inc., 72 AD3d 646; Sierra v Gonzalez First Limo, 71 AD3d 864; Little v Locoh, 71 AD3d 837) and upon recent findings ( see Sham v B P Chimney Cleaning Repair Co., Inc., 71 AD3d 978; Carrillo v DiPaola, 56 AD3d 712; Krauer v Hines, 55 AD3d 881, 882).

  2. Catalano v. Kopmann

    73 A.D.3d 963 (N.Y. App. Div. 2010)   Cited 105 times
    Finding that the plaintiff's affidavit did not constitute objective evidence of injury and therefore did not defeat a summary judgment motion given her physician's failure to document a serious injury

    Those submissions set forth no findings based on objective testing of the plaintiff. At most, those submissions noted the plaintiffs subjective complaints of pain ( see Sham v B P Chimney Cleaning Repair Co., Inc., 71 AD3d 978; Ambos v New York City Tr. Auth., 71 AD3d 801; House v MTA Bus Co., 71 AD3d 732). The submissions of Roman Sorin, the plaintiffs treating physician, also failed to raise a triable issue of fact. Although Dr. Sorin examined the plaintiff seven months after the accident and noted during the examination significant limitations in the range of motion in the cervical and lumbar regions of the plaintiffs spine, and examined the plaintiff again in 2008 noting significant limitations in the cervical region of the plaintiffs spine only, neither he nor the plaintiff proffered competent medical evidence that revealed the existence of significant limitations in either region of the plaintiffs spine that were contemporaneous with the subject accident ( see Bleszcz v Hiscock, 69 AD3d 890; Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Serv., 49 AD3d 498).

  3. Page v. Lewis

    2019 N.Y. Slip Op. 34811 (N.Y. Sup. Ct. 2019)

    Dr. Korman found that Page exhibited full joint function in her left shoulder and cervical and lumbar regions. Moreover, Page failed to submit any medical evidence of significant restrictions in shoulders and cervical and lumbar joint function based on a recent examination (see Santos v Perez. 107 A.D.3d 572, 574, 968 N.Y.S.2d43 [1st Dept2013]; Vega v MTA Bus Co., 96 A.D.3d 506, 946 N.Y.S.2d 162 [ 1 st Dept 2012]; Sham v B&P Chimney Cleaning & Repair Co., 71 A.D.3d 978, 900 N.Y.S.2d 72 [2d Dept 2010]).

  4. Collado v. Perez

    2019 N.Y. Slip Op. 34734 (N.Y. Sup. Ct. 2019)

    On December 7, 2015, Dr. Anand performed range of motion testing on plaintiffs cervical and lumbar regions, using an inclinometer to measure his joint movement, and found significant range of motion restrictions in these regions. However, plaintiff failed to submit any medical evidence of significant restrictions in cervical and lumbar joint function based on a recent examination (see Santos v Perez, 107 A.D.3d 572, 574, 968 N.Y.S.2d 43 [1st Dept 2013]; Vega v MTA Bus Co., 96 A.D.3d 506, 946 N.Y.S.2d 162 [1st Dept 2012]; Shamv B&P Chimney Cleaning &Repair Co., 71 A.D.3d 978, 900 N.Y.S.2d 72 [2d Dept 2010]).

  5. Pedreira v. Baird

    2019 N.Y. Slip Op. 34846 (N.Y. Sup. Ct. 2019)

    Moreover, Orthopedic Associates of Long Island's May 16, 2012 record stated that plaintiff had "pain with forced full extension" and "full flexion," and its June 1, 2012 record stated that plaintiff had normal range of motion in his thoracic region. The May 16, 2012 record stated that although plaintiff complained of joint pain in his knees and back, he denied stiffness, swelling and bone pain. Furthermore, plaintiff failed to submit any medical evidence of significant restrictions in the joint function of cervical and lumbar regions, right ankle, and left knee based on a recent examination (see Santos v Perez, 107 A.D.3d 572, 574, 968 N.Y.S.2d43 [1st Dept 2013]; Vega v MTA Bus Co., 96 A.D.3d 506, 946 N.Y.S.2d 162 [ 1st Dept 2012], Sham v B&P Chimney Cleaning & Repair Co., 71 A.D.3d 978, 900 N.Y.S.2d 72 [2d Dept 2010]).

  6. Reid v. Mattioli

    2014 N.Y. Slip Op. 31006 (N.Y. Sup. Ct. 2014)

    Here, the defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law by showing, through the affirmed report of the medical expert and the plaintiff's deposition testimony, 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 Choi v Guerrero, __ NYS2d ___, 2011 WL 1086941, 2011 NY Slip Op. 02373 [NY AD 2 Dept Mar 22, 2011]; Sham v B&P Chimney Cleaning & Repair Co.., Inc., 71 AD3d 978, 900 NYS2d 72 [2d Dept 2010]; Staff v Yshua, 59 AD3d 614, 874 NYS2d 180 [2d Dept 2009]; Villeda v Cassas, 56 AD3d 762, 871, NYS2d 167 [2d Dept 2008]; Taranto v McCaffrey, 40 AD3d 626, 835 NYS2d 365 [2d Dept 2007]). The Court initially notes that sprains and strains are not serious injuries within the meaning of Insurance Law § 5102(d) (see Rabolt v Park, 50 AD3d 995, 858 NYS2d 197 [2d Dept 2008]; Washington v Cross, 48 AD3d 457, 849 NYS2d 784 [2d Dept 2008]; Maenza v Letkajornsook, 172 AD2d 500, 567 NYS2d 850 [2d Dept 1991[).

  7. Castillo v. Gonzalez

    2011 N.Y. Slip Op. 32690 (N.Y. Sup. Ct. 2011)

    Plaintiff must come forth with objective evidence of the extent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent examination of the plaintiff (Sham v B P Chimney Cleaning, 71 AD3d 978 [2nd Dept 2010]; Cornelius v Cintas Corp. 50 AD3d 1085 [2nd Dept 2008]; Sharma v Diaz, 48 AD3d 442 [2nd Dept 2007]; Amato v Fast Repair, Inc., 42 AD3d 447 [2nd Dept 2007] and upon medical proof contemporaneous with the subject accident. (Perl v Mehr, 74 AD3d 930 [2nd Dept 2010]; Ferraro v Ridge Car Service, 49 AD3d 498 [2nd Dept 2008]; Manning v Tejeda, 38 AD3d 622 [2nd Dept 2007]; Zinger v Zylberberg, 35 AD3d 851 [2nd Dept 2006]).

  8. Bassant v. Metropolitan Transp. Auth.

    2011 N.Y. Slip Op. 32277 (N.Y. Sup. Ct. 2011)

    The objective evidence provided must be based on a recent examination of the plaintiff. Sham v B P Chimney Cleaning and Repair Co., Inc., 71 AD3d 978, 979 [2nd Dept. 2010]. Plaintiff must also present medical proof contemporaneous with the accident, showing any initial range of motion restrictions.

  9. ANIA v. RAMIREZ-MELARA

    2011 N.Y. Slip Op. 32647 (N.Y. Sup. Ct. 2011)

    ROSINO's complaints of subjective pain do not by themselves satisfy the "serious injury" requirement of the no-fault law. SeeScheer v. Koubek, 70 NY2d 678; Calabro v. Petersen, 82 AD3d 1030; Catalano v. Kopman, 73 AD3d 963; Sham v. B P Chimney Cleaning Repair Co., Inc., 71 AD3d 978; Ambos v. New York City Transit Authority, 71 AD3d 801; Acosta v. Alexandre, supra; Dantini v. Cuffie, 59 AD3d 490; Ranzie v. Abdul-Massih, 28 AD3d 447. Based on the foregoing, it is

  10. Caracciolo v. Elmont Fire Dist.

    2011 N.Y. Slip Op. 31756 (N.Y. Sup. Ct. 2011)

    These requirements are applied to defendants seeking summary judgment, as well as to plaintiffs opposing summary judgment. The plaintiffs are also required to demonstrate restricted range of motion based on findings both contemporaneous to the accident ( seeStevens v. Sampson, 72 A.D.3d 793, 898 N.Y.S.2d 657; Jack v. Acapulco Car Serv., Inc., 72 A.D.3d 646, 897 N.Y.S.2d 648; Sierra v. Gonzalez First Limo, 71 A.D.3d 864, 895 N.Y.S.2d 863; Little v. Locoh, 71 A.D.3d 837, 897 N.Y.S.2d 183) and upon recent findings ( see Sham v. B P Chimney Cleaning Repair Co. Inc., 71 A.D.3d 978, 900 N.Y.S.2d 72; Carrillo v. DiPaola, 56 A.D.3d 712, 869 N.Y.S.2d 135; Krauer v. Hines, 55 A.D.3d 881, 882, 866 N.Y.S.2d 340) Perl v. Meher, 74 A.D.3d 930, 633-634, 902 N.Y.S.2d 632 [2nd Dept, 2010]