Guadalupe v. Blondie Limo, Inc.
Decision Date | 13 September 2007 |
Docket Number | 1375. |
Citation | 841 N.Y.S.2d 525,43 A.D.3d 669,2007 NY Slip Op 06729 |
Parties | GENEVIEVE GUADALUPE, Appellant, v. BLONDIE LIMO, INC., et al., Respondents. |
Court | New York Supreme Court — Appellate Division |
Defendants established a prima facie entitlement to summary judgment by submitting evidence demonstrating that plaintiff did not sustain a serious injury as a result of the car accident between the parties. Specifically, defendants submitted the affirmed report of a neurologist who, upon examining plaintiff and performing objective tests, concluded that she had a normal range of motion of the lumbar and cervical spine, despite positive MRI findings (see Thompson v Abbasi, 15 AD3d 95, 96 [2005]). They also submitted plaintiff's bill of particulars and deposition testimony, which reveal that plaintiff was confined to bed and home for only a few weeks after the accident.
Plaintiff failed to raise a triable issue of fact that a serious injury was sustained within the meaning of Insurance Law § 5102 (d). Despite the positive MRI report, there were no objective findings immediately following the accident to demonstrate any initial range-of-motion restrictions on plaintiff's cervical and lumbar spine, or any detailed explanation for their omission (Thompson, 15 AD3d at 98). The quantitative range-of-motion assessment plaintiff did submit was made more than two years after the accident by a physician who examined her only on that one occasion (see Atkinson v Oliver, 36 AD3d 552 [2007]). There is thus a failure of proof relating this doctor's findings to an accident that occurred more than two years prior to his examination.
Plaintiff also failed to raise a triable issue of fact as to whether she was incapacitated from performing substantially all of her usual and customary activities for at least 90 of the first 180 days after the accident. The subjective claims of pain and "unsubstantiated claim of inability to perform [her] customary daily activities are insufficient to raise a triable issue of fact" (Thompson, 15 AD3d at 101).
To continue reading
Request your trial-
Clemmer v. Drah Cab Corp.
...is too remote in time to warrant the inference that the limitations were caused by the accident ( see Guadalupe v. Blondie Limo, Inc., 43 A.D.3d 669, 841 N.Y.S.2d 525 [2007] ). Defendants met their initial burden of showing prima facie that plaintiff did not sustain a 90/180-day injury by s......
-
Correa v. Saifuddin
...facie showing on a summary judgment motion ( see Perez v. Vasquez, 71 A.D.3d 531, 897 N.Y.S.2d 412 [2010]; Guadalupe v. Blondie Limo, Inc., 43 A.D.3d 669, 841 N.Y.S.2d 525 [2007] ). However, we are unable to discern from those decisions the reasoning justifying that aspect of those rulings.......
-
Jackson v. Mariam Et Alassane Car Serv., Inc., Index No.: 302182/2011
...almost five years after the accident (Vaughn v. Baez, 305 A.D.2d 101 [1st Dept. 2003]; See also Guadalupe v. Blondie Limo, Inc., 43 A.D.3d 669 [1st Dept. 2007]). Further, even though he expressly reviewedPage 7Dr. McMahon failed to address the defendants' experts' non-conclusory opinion tha......
-
Williams v. Tatham
...62 A.D.3d 434, 438, 879 N.Y.S.2d 82 [2009], affd. 14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010]; Guadalupe v. Blondie Limo, Inc., 43 A.D.3d 669, 841 N.Y.S.2d 525 [2007]; Shuji Yagi v. Corbin, 44 A.D.3d 440, 843 N.Y.S.2d 276 [2007]; Thompson v. Abbasi, 15 A.D.3d 95, 96, 788 N.Y.S.2d......