Nieves v. Michael

• Decision Date: 04 May 2010
• Citation: 901 N.Y.S.2d 100,73 A.D.3d 716,2010 N.Y. Slip Op. 03885
• Parties: Esilda NIEVES, appellant,v.Marc MICHAEL, et al., respondents.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 716

901 N.Y.S.2d 100

2010 N.Y. Slip Op. 03885

Esilda NIEVES, appellant,

v.Marc MICHAEL, et al., respondents.

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

May 4, 2010.

Aliazzo, McCloskey & Gonzalez, LLP, Ozone Park, N.Y. (Thomas P. McCloskey of counsel), for appellant.Perez & Varvaro, Uniondale, N.Y. (Alex M. Temple of counsel), for respondents.

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 plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), entered April 21, 2009, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants met their prima facie burden of showing 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, 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; see also Giraldo v. Mandanici, 24 A.D.3d 419, 419–420, 805 N.Y.S.2d 124).

In opposition, the plaintiff failed to raise a triable issue of fact. In opposition to the defendants' motion, the plaintiff principally relied upon the affirmation of her treating physician, Dr. Benjamin Beiber. This affirmation was insufficient to raise a triable issue of fact. Dr. Beiber failed to address the findings of the defendants' examining physician, Dr. Michael R. Miller, who concluded that the plaintiff's injuries and range-of-motion limitations were caused by preexisting degeneration. This failure rendered speculative Dr. Beiber's conclusion that the plaintiff's injuries and loss of motion he noted were caused by the subject accident ( see Iovino v. Scholl, 69 A.D.3d 799, 893 N.Y.S.2d 230; Shmerkovich v. Sitar Corp., 61 A.D.3d 843, 878 N.Y.S.2d 86; Pamphile v. Bastien, 61 A.D.3d 659, 660, 877 N.Y.S.2d 137; Levine v. Deposits Only, Inc., 58 A.D.3d 697, 698, 872 N.Y.S.2d 149; Marrache v. Akron Taxi Corp., 50 A.D.3d 973, 974, 856 N.Y.S.2d 239; Giraldo v. Mandanici, 24 A.D.3d at 420, 805 N.Y.S.2d 124).

While Dr. Beiber stated in his affirmation that he examined the plaintiff on February 17, 2006, which was shortly after the accident, and noted that the plaintiff had “loss of motion” in her left shoulder, Dr. Beiber failed to set forth the objective testing he did in order to arrive at that conclusion ( see Knopf v. Sinetar, 69 A.D.3d 809, 895 N.Y.S.2d 108; Spence v. Mikelberg, 66 A.D.3d 765, 887 N.Y.S.2d 600; Sapienza v. Ruggiero, 57 A.D.3d 643, 869 N.Y.S.2d 192; Budhram v. Ogunmoyin, 53 A.D.3d 640, 641, 863 N.Y.S.2d 224; Piperis v. Wan, 49 A.D.3d 840, 841, 854 N.Y.S.2d 489). While Dr. Beiber examined the plaintiff on October 22, 2008, and noted significant limitations in the plaintiff's left shoulder range of motion, neither he nor the plaintiff proffered competent medical evidence that revealed the existence of significant limitations in the plaintiff's left shoulder range of motion that were contemporaneous with the subject accident ( see Bleszcz v. Hiscock, 69 A.D.3d 890, 894 N.Y.S.2d 481; Taylor v. Flaherty, 65 A.D.3d 1328, 887 N.Y.S.2d 144; Fung v. Uddin, 60 A.D.3d 992, 876 N.Y.S.2d 469; Gould v. Ombrellino, 57 A.D.3d 608, 869 N.Y.S.2d 567; Kuchero v. Tabachnikov, 54 A.D.3d 729, 864 N.Y.S.2d 459; Ferraro v. Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408). Without such contemporaneous findings, the plaintiff could not have raised a triable issue of fact under the permanent loss, permanent consequential limitation of use, or the significant limitation of use categories of Insurance Law § 5102(d) ( see Jack v. Acapulco Car Service, Inc., 72 A.D.3d 646, 897 N.Y.S.2d 648 [2d...