Rivera v. Gonzalez — 107 A.D.3d 500

Majority

p. 500

Luis Rivera, Appellant, v Miguel A. Gonzalez et al., Respondents.

[967 NYS2d 60]

Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered March 7, 2012, which granted defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.

In opposition to defendants’ prima facie showing that plaintiff did not suffer a serious injury to his lumbar spine in a March 2007 automobile accident, plaintiff submitted an affirmed report by his radiologist finding a herniated lumbar disc. That finding alone is insufficient to establish a serious injury; additional objective medical evidence of significant physical limitations resulting from the herniation is required (Pommells v Perez, 4 NY3d 566 , 574 [2005]; Wetzel v Santana, 89 AD3d 554 , 555 [1st

p. 501

Dept 2011]). Plaintiff also presented an affirmation by his initial treating physician, who found range of motion limitations within weeks after the accident. However, plaintiffs medical records show that, two months after the subject accident, he had only insignificant limitations in range of motion (see Phillips v Tolnep Limo Inc., 99 AD3d 534 , 534 [1st Dept 2012]). The affirmed reports of Dr. Shahid Mian, an orthopedist who examined plaintiff nearly two years after the accident, in March 2009, and again in 2011, are insufficient to raise an issue of fact because he failed to compare his measurements to normal ranges of motion (Toure v Avis Rent A Car Sys., 98 NY2d 345 , 350 [2002]; Soho v Konate, 85 AD3d 522 , 523 [1st Dept 2011]). Nor did he provide any explanation for any decrease in mobility following plaintiffs improvement in 2007 (see e.g. Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011]).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Tom, J.P., Friedman, Freedman and Feinman, JJ.

Cases cited

Pommells v. Perez 4 NY3d 566 N.Y. 2005-04-28 at 574 p. 500
Wetzel v. Santana 89 AD3d 554 N.Y. App. Div. 2011-11-17 at 555 p. 500
Phillips v. Tolnep Limo Inc. 99 AD3d 534 N.Y. App. Div. 2012-10-11 at 534 p. 501
Toure v. Avis Rent A Car Systems, Inc. 98 NY2d 345 N.Y. 2002-07-09 at 350 p. 501
Soho v. Konate 85 AD3d 522 N.Y. App. Div. 2011-06-16 at 523 p. 501
Jno-Baptiste v. Buckley 82 AD3d 578 N.Y. App. Div. 2011-03-22 p. 501

Statutes and regulations cited

Insurance Law p. 500