Opinion
570574/07.
Decided March 6, 2008.
Defendant Brick Yard, Inc. appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered June 15, 2007, which denied its cross motion for summary judgment.
Order (Ben R. Barbato, J.), entered June 15, 2007, reversed, with $10 costs, motion granted and complaint dismissed as against defendant-appellant, and upon a search of the record, as against co-defendant Rodriguez. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
PRESENT: DAVIS, J.P., SCHOENFELD, HEITLER, JJ.
Defendant satisfied its initial burden of demonstrating that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), through the affirmed reports of an orthopedist who concluded that plaintiff had normal ranges of motion and had recovered from a lumbar sprain/strain injury, and a radiologist who reviewed plaintiff's MRI films and opined that his disc abnormality was degenerative and non-traumatic in origin ( see Taylor v Terrigno, 27 AD3d 316; Agard v Bryant, 24 AD3d 182). In opposition, plaintiff, while submitting evidence of pain and a herniated disc, failed to submit the requisite contemporaneous quantitative assessment of range of motion limitations or any explanation for their omission ( see Guadalupe v Blondie Limo, Inc. 43 AD3d 669; Atkinson v Oliver, 36 AD3d 552). Plaintiff's chiropractor did not quantify restrictions of motion until two years after the vehicular accident, too remote in time to raise an issue of fact ( see Lopez v Simpson, 39 AD3d 420).
The necessary showing that plaintiff did not sustain a 90/180-day injury was made by his bill of particulars and deposition testimony indicating less than one month of incapacity, and by a record otherwise devoid of evidence tending to show such an injury ( see Alexander v Garcia, 40 AD3d 274).
Although co-defendant Rodriguez did not file a notice of appeal from the denial of his motion for summary judgment, we search the record and grant summary judgment in his favor, since plaintiff cannot meet the threshold for serious injury ( see Merritt Hill Vineyards Inc. v Windy Heights Vineyard, Inc., 61 NY2d 106).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.