Colon v. Torres
Decision Date | 09 May 2013 |
Citation | 965 N.Y.S.2d 90,2013 N.Y. Slip Op. 03387,106 A.D.3d 458 |
Parties | Christina COLON, et al., Plaintiffs–Appellants, v. Christina TORRES, Defendant–Respondent, “John Doe,” etc., Defendant. |
Court | New York Supreme Court — Appellate Division |
106 A.D.3d 458
965 N.Y.S.2d 90
2013 N.Y. Slip Op. 03387
Christina COLON, et al., Plaintiffs–Appellants,
v.
Christina TORRES, Defendant–Respondent,
“John Doe,” etc., Defendant.
Supreme Court, Appellate Division, First Department, New York.
May 9, 2013.
[965 N.Y.S.2d 91]
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants.
Law Offices of Michael A. Barnett, Garden City (Jay M. Weinstein of counsel), for respondent.
GONZALEZ, P.J., TOM, SWEENY, RENWICK, RICHTER, JJ.
[106 A.D.3d 458]Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered June 29, 2012, which, upon the parties' motions for summary judgment, dismissed the complaint in its entirety based upon the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
The motion court properly considered defendant Torres' supplemental submission of medical reports relative to plaintiff Christina Colon, since Torres' counsel demonstrated that the failure to annex such medical affirmations was the result of a clerical error. Moreover, the affirmations had been provided to plaintiffs,
who were not prejudiced by their delayed submission to the court ( see Tierney v. Girardi, 86 A.D.3d 447, 448, 927 N.Y.S.2d 331 [1st Dept. 2011];compare Ostrov v. Rozbruch, 91 A.D.3d 147, 936 N.Y.S.2d 31 [1st Dept. 2012] ).
The record establishes that neither plaintiff suffered a “permanent consequential” or “significant limitation of use” of their cervical and lumbar spine (Insurance Law § 5102[d] ). The submitted expert medical reports showed normal ranges of motion in the claimed injured body parts, and noted that plaintiffs had not sought any medical treatment after receiving three months of chiropractic treatment following the accident. Any discrepancies in the experts' stated normal values for certain ranges of motion were not so significant as to defeat summary judgment, since the experts found “a full range of motion ... in every plane” ( Gibbs v. Reid, 94 A.D.3d 636, 636, 942 N.Y.S.2d 355 [1st Dept. 2012] ). In the absence of any other evidence of serious injury, the experts were not required to discuss diagnostic tests indicating[106 A.D.3d 459]bulging or herniated discs ( see Onishi v. N & B Taxi, Inc., 51 A.D.3d 594, 595, 858 N.Y.S.2d 171 [1st Dept. 2008] ).
Plaintiffs' opposition failed to raise a triable issue of fact. Although their treating chiropractor found recent range-of-motion deficits, he failed to...
To continue reading
Request your trial-
Cohen v. Cassm Realty Corp.
...plaintiff and defendants the opportunity to supplement the record with authenticated and admissible evidence, Colon v. Torres, 106 A.D.3d 458, 458, 965 N.Y.S.2d 90 (1st Dep't 2013) ; Ostrov v. Rozbruch, 91 A.D.3d 147, 153–54, 936 N.Y.S.2d 31 (1st Dep't 2012) ; Tierney v. Girardi, 86 A.D.3d ......
-
Abraham v. 257 Cent. Park W., Inc.
...new theory of recovery not pleaded in the complaint. Ostrov v. Rozbruch, 91 A.D.3d 147, 153-44 (1st Dep't 2012). See Colon v. Torres, 106 A.D.3d 458, 458 (1st Dep't 2013); Tierney v. Girardi,86 A.D.3d 447, 448 (1st Dep't 2011); Ashton v. D.O.C.S. Continuum Med. Group, 68 A.D.3d 613, 614 (1s......
-
Alverio v. Martinez
...of full range of motion in her own reports prepared the day after the accident and in the next two months (see Colon v. Torres, 106 A.D.3d 458, 965 N.Y.S.2d 90 [1st Dept. 2013] ; Thomas v. City of New York, 99 A.D.3d 580, 581, 953 N.Y.S.2d 15 [1st Dept. 2012], lv denied 22 N.Y.3d 857, 981 N......
-
Cabrera v. Apple Provisions, Inc.
...renders her opinion speculative (see Santos v. Perez, 107 A.D.3d 572, 574, 968 N.Y.S.2d 43 [1st Dept.2013] ; Colon v. Torres, 106 A.D.3d 458, 965 N.Y.S.2d 90 [1st Dept.2013] ). As to the lumbar spine, plaintiff's treatment records showed that he had normal or near-normal lumbar spine range ......