Judd Rubin v. SMS Taxi Corp.

• Decision Date: 23 March 2010
• Parties: Judd RUBIN, Plaintiff-Appellant, v. SMS TAXI CORP., et al., Defendants-Respondents, RAZ Taxi Corp., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 110
71 A.D.3d 548

Judd RUBIN, Plaintiff-Appellant,
v.
SMS TAXI CORP., et al., Defendants-Respondents,
RAZ Taxi Corp., et al., Defendants.

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

March 23, 2010.

898 N.Y.S.2d 111

Kreindler & Kreindler, LLP, New York (Orla M. Brady of counsel), for appellant.

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

MAZZARELLI, J.P., SAXE, MOSKOWITZ, RENWICK, RICHTER, JJ.

71 A.D.3d 548

Order, Supreme Court, New York County (Debra A. Kaplan, J.), entered February 11, 2008, that to the extent appealed from, granted the motion by defendants SMS Taxi and Lachheb for summary judgment dismissing the complaint for failure to demonstrate serious injury, except with respect to the claim for significant disfigurement, unanimously affirmed without costs. Order, same court (Paul Wooten, J.), entered December 23, 2008, that denied plaintiff's motion for clarification or reconsideration, unanimously reversed, on the law, without costs, the motion granted and the prior order clarified so as to state

898 N.Y.S.2d 112

that once a jury determines plaintiff has met the threshold for serious injury, the jury may award damages for all of plaintiff's injuries causally related to the accident, even those not meeting the serious injury threshold.

As the motion court found, defendants met their initial burden of producing evidentiary proof in admissible form sufficient to show that plaintiff's neck and back injuries did not meet any serious injury thresholds. Plaintiff's medical submissions were devoid of information to substantiate his 90/180 claim. The plaintiff also failed to raise an issue of fact as to any other category from Insurance Law § 5102 because he did not show: (1) what medical tests were performed, (2) the objective

71 A.D.3d 549

nature of the tests, (3) what the normal range of motion should be and (4) the significance of plaintiff's limitations. Plaintiff thus failed to raise an issue of fact as to the claims for permanent loss, permanent consequential limitation and significant limitation of use of a body part, system or function ( see Marsh v. City of New York, 61 A.D.3d 552, 877 N.Y.S.2d 65 [2009]; Valentin v. Pomilla, 59 A.D.3d 184, 186, 873 N.Y.S.2d 537 [2009] ). Further, plaintiff's unsworn affirmation is insufficient to explain his cessation of treatment ( see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).

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