Resek v. Morreale

• Citation: 903 N.Y.S.2d 120,74 A.D.3d 1043
• Parties: Martin J. RESEK, Jr., et al., appellants, v. Anne MORREALE, et al., respondents.
• Decision Date: 15 June 2010
• Court: New York Supreme Court Appellate Division

903 N.Y.S.2d 120

74 A.D.3d 1043

Martin J. RESEK, Jr., et al., appellants,

v.Anne MORREALE, et al., respondents.

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

June 15, 2010.

Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Marsha S. Weiss of counsel), for appellants.

Eisenberg & Kirsch, Liberty, N.Y. (Michael D. Wolff of counsel), for respondents.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Sproat, J.), dated September 11, 2009, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Martin Resek, Jr., 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 Martin J. Resek, Jr. (hereinafter the injured 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). In opposition, the plaintiffs failed to raise a triable issue of fact.

Initially, the magnetic resonance imaging report of the injured plaintiff's left shoulder, dated August 30, 2004, as authored by Dr. Frank Starvaggi, and the medical report of Dr. David T. Stamer dated September 14, 2004, were insufficient to raise a triable issue of fact because they were unaffirmed ( see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76; Lozusko v. Miller, 72 A.D.3d 908, 899 N.Y.S.2d 358; Bleszcz v. Hiscock, 69 A.D.3d 890, 894 N.Y.S.2d 481; Singh v. Mohamed, 54 A.D.3d 933, 864 N.Y.S.2d 498; Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71; Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396).

In an affirmation, Dr. William O. Thompson stated that he examined the injured plaintiff for the first time on September 28, 2006, and again on May 19, 2009. Dr. Thompson failed to set forth any findings from his initial examination of the injured plaintiff. As to his most recent examination of the injured plaintiff, on May 19, 2009, Dr. Thompson noted that the injured plaintiff had "restricted" range of motion in the left shoulder. However, Dr. Thompson did not set forth any objective testing he did in order to arrive at that conclusion ( see Fiorillo v. Arriaza, 52 A.D.3d 465, 859 N.Y.S.2d 699; Murray v. Hartford, 23 A.D.3d 629, 804 N.Y.S.2d 416; Nozine v. Sav-On Car Rentals, 15 A.D.3d 555, 556, 790 N.Y.S.2d 204; Bailey v. Ichtchenko, 11 A.D.3d 419, 420, 782 N.Y.S.2d 781; Kauderer v. Penta, 261 A.D.2d 365, 366, 689 N.Y.S.2d 190). Dr. Thompson also failed to reconcile his findings of limitation in the plaintiff's left shoulder in May 2009, as set forth in his affirmation, with the report of the injured plaintiff's other treating physician, Dr. Gary Fink, who found no limitations in the injured plaintiff's left shoulder less than one month post-accident ( see Raleigh v. Ram, 60 A.D.3d 747, 874 N.Y.S.2d 258).

The plaintiffs failed to proffer any competent medical evidence demonstrating the existence of significant limitations in the injured plaintiff's left shoulder 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). While the plaintiffs relied upon the affirmed medical report of Dr. Paul Jones, an independent orthopedist who examined the injured plaintiff on January 28, 2005, more than five months post-accident, this was not contemporaneous with the accident. Without such contemporaneous findings, the plaintiffs were unable to raise a triable issue of fact as to whether the injured plaintiff sustained a seriousinjury to his left shoulder under the permanent consequential limitation of use or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident ( see Jack v. Acapulco Car Service, Inc., 72 A.D.3d 646, 897 N.Y.S.2d 648; Bleszcz v. Hiscock, 69 A.D.3d at 891, 894 N.Y.S.2d 481; Taylor v. Flaherty, 65 A.D.3d at 1328-1329, 887 N.Y.S.2d 144; Ferraro v. Ridge Car Serv., 49 A.D.3d at 498, 854 N.Y.S.2d 408). Furthermore, while Dr. Jones set forth left...