Opinion
570528/04, 04-353.
Decided November 23, 2005.
Defendants appeal from an order of the Civil Court, Bronx County (Raul Cruz, J.), entered June 25, 2004, which denied their motion for summary judgment dismissing the complaint.
Order (Raul Cruz, J.), entered June 25, 2004, reversed, with $10 costs, defendants' motion granted, and complaint dismissed.
PRESENT: McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ.
The injured plaintiff was 11 years old at the time of the accident in May 2001. He was seen and treated by a neurologist who, 12 days after the accident, found moderate spinal tenderness with muscle spasm and unspecified restriction of motion. Straight-leg raising was normal. In an examination four weeks later, the neurologist noted moderate improvement through physical therapy, neck and back pain 50% improved, but continuing pain in the right shin. Plaintiff was also seen and treated by a chiropractor who offered no medical report, but stated in an affidavit two and a half years later that 38 days after the accident, plaintiff had certain quantified restrictions of spinal motion, but generally positive results in range-of-motion tests. Neither of these practitioners saw plaintiff beyond 40 days after the accident.
Two doctors — an orthopedist and a neurologist — examined plaintiff on defendants' behalf in April 2003, each independently concluding that plaintiff had no permanent injury and had completely recovered from the effects of the accident.
The court properly concluded that defendants satisfied their initial burden of demonstrating lack of serious injury (Insurance Law § 5102[d]), and noted that plaintiffs "barely raised a triable issue of fact" in rebuttal to the prima facie defense. But the court then denied defendants' motion, citing the injured plaintiff's "tender age" and his chiropractor's reference to her undocumented finding, a full three years earlier, of "substantial limitations of range of motion."
The passage of time between plaintiffs' doctors' findings and their affirmations in opposition to summary judgment, with no indication of follow-up examination or treatment in the interim, left plaintiffs' opposition reliant solely on stale evidence inadequate to establish serious injury ( Medina-Santiago v. Nojovits, 5 AD3d 253). Where a complaint of serious injury is based on limited range of motion, objective medical findings from recent examination are necessary to defeat a motion for summary dismissal ( Bent v. Jackson, 15 AD3d 46; Thompson v. Abbasi, 15 AD3d 95), absent adequate explanation for the cessation of treatment ( Grossman v. Wright, 268 AD2d 79, 84).
This constitutes the decision and order of the Court.