Russell v. Mitchell

Appellate Division of the Supreme Court of New York

Russell v. Mitchell

59 A.D.3d 355, 874 N.Y.S.2d 71

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 26, 2009

StatusPublished

Cited by2 cases

This text of 59 A.D.3d 355 (Russell v. Mitchell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Russell v. Mitchell, 59 A.D.3d 355, 874 N.Y.S.2d 71 (N.Y. Ct. App. 2009).

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Opinion

Order, Supreme Court, Bronx County (John A. Barone, J.), entered July 14, 2008, which, insofar as appealed from as limited by the briefs, denied defendant-appellant’s cross 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 reversed, on the [356]*356law, without costs, and the cross motion granted. The Clerk is directed to enter judgment in favor of appellant dismissing the complaint.

Appellant established a prima facie entitlement to summary judgment by submitting the affirmed reports of an orthopedic surgeon and a neurologist, who reviewed plaintiffs medical records, examined her and performed detailed and objective tests before concluding that plaintiff had full range of motion in her cervical and lumbar spines and her shoulders, and that the sprain injuries she sustained had resolved (see Lunkins v Toure, 50 AD3d 399 [2008]). Appellant also submitted the affirmed reports of a radiologist, who determined that plaintiffs claimed injuries were not causally related to her accident, but rather were the result of a degenerative condition (see Becerril v Sol Cab Corp., 50 AD3d 261 [2008]). Furthermore, appellant submitted plaintiffs deposition testimony, where she stated, inter alia, that she missed no work as a result of the accident.

Plaintiffs opposition failed to present evidence rebutting the findings of appellant’s doctors, specifically the opinion of the radiologist that the growth shown on the MRI was a degenerative condition that had developed over time (see Pommells v Perez, 4 NY3d 566, 580 [2005]). Nor does plaintiff raise a triable issue of fact regarding her 90/180-day claim. As noted, plaintiff went back to work immediately following the accident, and her subjective claims of pain and of her inability to perform household chores are insufficient to raise a triable issue (see Guadalupe v Blondie Limo, Inc., 43 AD3d 669, 670 [2007]). Concur—Saxe, J.P, Catterson, McGuire, Moskowitz and Acosta, JJ.

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Order, Supreme Court, Bronx County (John A. Barone, J.), entered July 14, 2008, which, insofar as appealed from as limited by the briefs, denied defendant-appellant’s cross 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 reversed, on the [356]*356law, without costs, and the cross motion granted. The Clerk is directed to enter judgment in favor of appellant dismissing the complaint.

Appellant established a prima facie entitlement to summary judgment by submitting the affirmed reports of an orthopedic surgeon and a neurologist, who reviewed plaintiffs medical records, examined her and performed detailed and objective tests before concluding that plaintiff had full range of motion in her cervical and lumbar spines and her shoulders, and that the sprain injuries she sustained had resolved (see Lunkins v Toure, 50 AD3d 399 [2008]). Appellant also submitted the affirmed reports of a radiologist, who determined that plaintiffs claimed injuries were not causally related to her accident, but rather were the result of a degenerative condition (see Becerril v Sol Cab Corp., 50 AD3d 261 [2008]). Furthermore, appellant submitted plaintiffs deposition testimony, where she stated, inter alia, that she missed no work as a result of the accident.

Plaintiffs opposition failed to present evidence rebutting the findings of appellant’s doctors, specifically the opinion of the radiologist that the growth shown on the MRI was a degenerative condition that had developed over time (see Pommells v Perez, 4 NY3d 566, 580 [2005]). Nor does plaintiff raise a triable issue of fact regarding her 90/180-day claim. As noted, plaintiff went back to work immediately following the accident, and her subjective claims of pain and of her inability to perform household chores are insufficient to raise a triable issue (see Guadalupe v Blondie Limo, Inc., 43 AD3d 669, 670 [2007]). Concur—Saxe, J.P, Catterson, McGuire, Moskowitz and Acosta, JJ.

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Bluebook (online)

59 A.D.3d 355, 874 N.Y.S.2d 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-mitchell-nyappdiv-2009.

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