Sham v. B & P Chimney Cleaning and Repair Co., Inc.

• Decision Date: 23 March 2010
• Citation: 71 A.D.3d 978,900 N.Y.S.2d 72
• Court: New York Supreme Court — Appellate Division
• Parties: Roshinne SHAM, respondent, v. B & P CHIMNEY CLEANING AND REPAIR CO., INC., et al., defendants, Harry L. Scutt, et al., appellants.

900 N.Y.S.2d 72

71 A.D.3d 978

Roshinne SHAM, respondent,

v. B & P CHIMNEY CLEANING AND REPAIR CO., INC., et al., defendants,Harry L. Scutt, et al., appellants.

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

March 23, 2010.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellants.

Morton Povman, P.C., Forest Hills, N.Y., for respondent.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the defendants Harry L. Scutt and Orange Transportation Services appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.), entered July 21, 2009, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on theground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them is granted.

The appellants established, prima facie, through the affirmed report of their expert neurologist 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 Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 352, 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; Richards v. Tyson, 64 A.D.3d 760, 883 N.Y.S.2d 575; Berson v. Rosada Cab Corp., 62 A.D.3d 636, 878 N.Y.S.2d 189; Byrd v. J.R.R. Limo, 61 A.D.3d 801, 878 N.Y.S.2d 95). In opposition, the plaintiff's submissions were insufficient to raise a triable issue of fact. While the plaintiff's treating physician reported that he had treated the plaintiff from August 8, 2007, about one month after the accident, until February 8, 2008, and had most recently examined her on March 17, 2009, he only recorded the results of the objective testing he performed at the initial visit on August 8, 2007. Any subjective complaints of pain and limitation of motion must be substantiated by verified objective medical findings ( see Dantini v. Cuffie, 59 A.D.3d 490, 873 N.Y.S.2d 189; Villeda v. Cassas, 56 A.D.3d 762, 871 N.Y.S.2d 167), based on a recent examination of the plaintiff ( see Johnson v. Berger, 56 A.D.3d 725, 867 N.Y.S.2d 919; D'Alba v. Yong-Ae Choi, 33 A.D.3d 650, 823 N.Y.S.2d 423; Oliva v. Gross, 29 A.D.3d 551, 816 N.Y.S.2d 110)....