Shapira v. City of New York

Appellate Division of the Supreme Court of New York

Shapira v. City of New York

70 A.D.3d 525, 895 N.Y.S.2d 74

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

DecidedFebruary 18, 2010

StatusPublished

This text of 70 A.D.3d 525 (Shapira v. City of New York) 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.

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Shapira v. City of New York, 70 A.D.3d 525, 895 N.Y.S.2d 74 (N.Y. Ct. App. 2010).

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Opinion

[526]*526Order, Supreme Court, New York County (Carol E. Huff, J.), entered September 21, 2009, which granted defendants’ motions to dismiss the complaint, and order, same court and Justice, entered October 16, 2008, which denied plaintiffs motion for a new trial, unanimously affirmed, without costs.

Plaintiff’s failure to present objective evidence of physical limitations attributable to the disc herniations seen on her MRIs is fatal to her claim of serious injury to her spine (Pommells v Perez, 4 NY3d 566, 574 [2005]). As to her claim of significant disfigurement as a result of a nasal fracture, plaintiffs contention that the trial court gave her too short a continuance to obtain the hospital records that would document the fracture is unavailing, since the record demonstrates that the absence of competent evidence at trial was due either to a deliberate tactical decision by her counsel not to procure records that were readily available or to a lack of due diligence on his part (see Matter of Steven B., 6 NY3d 888 [2006]). Concur—Friedman, J.P., Sweeny, Nardelli and Freedman, JJ.

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[526]*526Order, Supreme Court, New York County (Carol E. Huff, J.), entered September 21, 2009, which granted defendants’ motions to dismiss the complaint, and order, same court and Justice, entered October 16, 2008, which denied plaintiffs motion for a new trial, unanimously affirmed, without costs.

Plaintiff’s failure to present objective evidence of physical limitations attributable to the disc herniations seen on her MRIs is fatal to her claim of serious injury to her spine (Pommells v Perez, 4 NY3d 566, 574 [2005]). As to her claim of significant disfigurement as a result of a nasal fracture, plaintiffs contention that the trial court gave her too short a continuance to obtain the hospital records that would document the fracture is unavailing, since the record demonstrates that the absence of competent evidence at trial was due either to a deliberate tactical decision by her counsel not to procure records that were readily available or to a lack of due diligence on his part (see Matter of Steven B., 6 NY3d 888 [2006]). Concur—Friedman, J.P., Sweeny, Nardelli and Freedman, JJ.

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Bluebook (online)

70 A.D.3d 525, 895 N.Y.S.2d 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shapira-v-city-of-new-york-nyappdiv-2010.

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