Tobiolo v. Friedman

• Decision Date: 14 May 2001
• Citation: 283 AD2d 483,724 N.Y.S.2d 651
• Parties: (A.D. 2 Dept. 2001) Rosemary Tobiolo, appellant, v Alice Friedman, respondent. 2000-08378 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 651

724 N.Y.S.2d 651 (A.D. 2 Dept. 2001)

Rosemary Tobiolo, appellant, v Alice Friedman, respondent.

2000-08378

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

May 14, 2001

Alan W. Clark & Associates, LLC, Levittown, N.Y. (Steven L. Alter of counsel), for appellant.

Robert P. Tusa, Garden City, N.Y. (David Holmes of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Phelan, J.), dated July 19, 2000, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendant met her initial burden of establishing, as a matter of law, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting, inter alia, the affirmed medical reports of an orthopedist and neurologist, based upon recent examinations of the plaintiff (see, Gaddy v Eyler, 79 N.Y.2d 955; Licari v Elliott, 57 N.Y.2d 230, 236).

In opposition to the defendant's motion, the plaintiff submitted, inter alia, numerous reports that were not in admissible form (see, Grasso v Angerami, 79 N.Y.2d 813, 814; Gleason v Huber, 188 A.D.2d 581). Furthermore, the two affirmations of the plaintiffs physicians were based on examinations of the plaintiff conducted over one year before the motion for summary judgment. Those projections of permanent limitations have no probative value in the absence of a recent examination (see, Bidetto v Williams, 276 A.D.2d 516; Mohamed v Dhanasar, 273 A.D.2d 451; Kauderer v Penta, 261 A.D.2d 365; Evans v Mohammad, 243 A.D.2d 604). Moreover, those affirmations failed to state what, if any, objective tests were performed to determine the range of motion of the plaintiff's spine and shoulder (see, Monaco v Davenport, 277 A.D.2d 209; Grossman v Wright, 268 A.D.2d 79, 85; Smith v Askew, 264 A.D.2d 834; Kauderer v Penta, supra; Lobo v Singh, 259 A.D.2d 523).

RITTER, J.P., ALTMAN, McGINITY, SMITH and COZIER, JJ., concur.