Alford v. Morency

208 N.Y.S.3d 241

225 A.D.3d 828

Morris ALFORD, respondent,

v.Jean W. MORENCY, etc., appellant.

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 8, 2024

March 27, 2024

Baker, McEvoy & Moskovits (Marjorie E. Bornes, Brooklyn, NY, of counsel), for appellant.

COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, LAURENCE L. LOVE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated October 19, 2022. The order denied the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.

The plaintiff commenced this action against the defendant to recover damages for personal injuries that he allegedly sustained when the vehicle that the defendant was driving collided with the plaintiff’s vehicle on September 25, 2015. The defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order dated October 19, 2022, the Supreme Court denied the motion. The defendant appeals.

[1] The defendant met his prima facie burden of showing 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 Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). In support of his motion, the defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the plaintiff’s spine and right foot did not constitute serious injuries under either the pennanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Chavez v. Foley, 220 A.D.3d 651, 651–652, 197 N.Y.S.3d 276; Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180), and that the alleged injuries to the plaintiff’s spine were not caused by the accident (see Scala v. Benitez, 216 A.D.3d 1190, 1191, 190 N.Y.S.3d 428; Wettstein v. Tacker, 178 A.D.3d 1121, 1122, 112 N.Y.S.3d 557; see also Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424).

In addition, the defendant demonstrated, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Scala v. Benitez, 216 A.D.3d at 1191, 190 N.Y.S.3d 428; Wettstein v. Tucker, 178 A.D.3d at 1121, 112 N.Y.S.3d 557).

[2] In opposition, the plaintiff failed to raise a triable issue of fact (see Wettstein v. Tucker, 178 A.D.3d at 1121, 112 N.Y.S.3d 557). The affirmed report of the plaintiff’s treating physician was insufficient to raise a triable issue of fact, as the treating physician failed to identify the objective tests that she utilized to measure the plaintiff’s range of motion, and failed to compare her findings to what would be normal (see Dine v. Shalesi, 208 A.D.3d 558, 559, 172 N.Y.S.3d 713; Nicholson v. Kwarteng, 180 A.D.3d 695, 696, 115 N.Y.S.3d 707). The plaintiff’s treating physician also failed to address the findings of the defendant’s experts that the alleged injuries to the cervical and lumbar regions of the plaintiff’s spine were degenerative in nature ...