Kauderer v. Penta

• Decision Date: 03 May 1999
• Citation: 261 A.D.2d 365,689 N.Y.S.2d 190
• Parties: 1999 N.Y. Slip Op. 3860 Zeev KAUDERER, et al., appellants, et al., plaintiff, v. Robert PENTA, respondent.
• Court: New York Supreme Court — Appellate Division

Page 190

689 N.Y.S.2d 190

1999 N.Y. Slip Op. 3860

Zeev KAUDERER, et al., appellants, et al., plaintiff, v. Robert PENTA, respondent.

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

May 3, 1999.

Bruce S. Reznick, Brooklyn, N.Y. (Thomas Torto and Jeffrey L. Caress of counsel), for appellants.

Tutoki & Goldstick, New York, N.Y. (Michael V. DiMartini of counsel), for respondent.

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN and DANIEL F. LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs Zeev Kauderer and Aliza Kauderer appeal from so much of an order of the Supreme Court, Kings County (Golden, J.), dated March 27, 1998, as granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action asserted by them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant's submissions in support of his motion for summary judgment included the report of Dr. Sidney Plotkin, an orthopedic surgeon who treated the injured plaintiff Zeev Kauderer. That report indicated that the injured plaintiff initially had subjective complaints of pain and some contusions and soft tissue swelling as a result of the subject accident. On subsequent visits, Dr. Plotkin could make no objective findings with regard to the injured plaintiff's complaints of pain, and found that the injured plaintiff had full range of motion, no neurological deficits, no vascular compromise, and no swelling approximately six weeks after the accident. Accordingly, the defendant made a prima facie showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The papers submitted by the injured plaintiff in opposition to the motion failed to demonstrate the existence of a triable issue of fact. The affidavit of his chiropractor was insufficient for this purpose, inasmuch as it referred to findings made during an examination which was performed almost three years earlier, and did not indicate that the opinion expressed therein was based upon any recent medical examination of the injured plaintiff (see, Thomas v. Roach, 246 A.D.2d 591, 667 N.Y.S.2d 296; Evans v. Mohammad, 243 A.D.2d 604, 663 N.Y.S.2d 273; Philpotts v. Petrovic, 160 A.D.2d 856, 554 N.Y.S.2d 289). Moreover, while the affidavit purported to quantify certain alleged restrictions in the injured plaintiff's range of...