Stephanie N. v. Davis

Appellate Division of the Supreme Court of New York

Stephanie N. v. Davis

126 A.D.3d 502, 5 N.Y.S.3d 412

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

DecidedMarch 12, 2015

Docket14498 350594/09

StatusPublished

Cited by6 cases

This text of 126 A.D.3d 502 (Stephanie N. v. Davis) 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

Stephanie N. v. Davis, 126 A.D.3d 502, 5 N.Y.S.3d 412 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered August 13, 2013, which, in an action for personal injuries sustained in a motor vehicle accident, granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law by showing that plaintiff Stephanie N. did not sustain “permanent consequential” or “significant limitation” injuries to her back as a result of the accident (Insurance Law § 5102 [d]). Defendants submitted the affirmed report of an orthopedic surgeon who reviewed an MRI report indicating no findings of bulging or herniated discs, and who examined plaintiff, finding normal results on the orthopedic tests he performed, and recording range-of-motion measurements expressed in numerical degrees and the corresponding normal values. The orthopedic surgeon’s finding of minor limitations in range-of-motion in two planes does not defeat defendants’ showing that she did not have significant or permanent limitation in use of her back, and that any sprain/strain had resolved (see Camilo v Villa Livery Corp., 118 AD3d 586 [1st Dept 2014]; Tuberman v Hall, 61 AD3d 441 [1st Dept 2009]).

In opposition, plaintiffs failed to raise a triable issue of fact. Although plaintiffs physician found limitations in some ranges of motion, plaintiff failed to provide any objective medical evidence of injury to her back (see Komina v Gil, 107 AD3d 596 [1st Dept 2013]). Furthermore, plaintiff failed to submit any medical records or other evidence reflecting that she made complaints or received treatment for claimed back injuries contemporaneous to or soon after the accident (see Perl v Meher, 18 NY3d 208, 217-218 [2011]; Rosa v Mejia, 95 AD3d 402, 403-404 [1st Dept 2012]). Although the affirmation of plaintiffs physician shows some limitations in range of motion when he first examined her three months after the accident, without competent evidence in the record of any prior complaints or treatment, that is insufficient to raise a triable issue as to *503 causation (see Linton v Gonzales, 110 AD3d 534 [1st Dept 2013]).

We have considered plaintiffs remaining arguments and find them unavailing.

Concur — Mazzarelli, J.P., Andrias, Saxe, Feinman and Clark, JJ.

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Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered August 13, 2013, which, in an action for personal injuries sustained in a motor vehicle accident, granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law by showing that plaintiff Stephanie N. did not sustain “permanent consequential” or “significant limitation” injuries to her back as a result of the accident (Insurance Law § 5102 [d]). Defendants submitted the affirmed report of an orthopedic surgeon who reviewed an MRI report indicating no findings of bulging or herniated discs, and who examined plaintiff, finding normal results on the orthopedic tests he performed, and recording range-of-motion measurements expressed in numerical degrees and the corresponding normal values. The orthopedic surgeon’s finding of minor limitations in range-of-motion in two planes does not defeat defendants’ showing that she did not have significant or permanent limitation in use of her back, and that any sprain/strain had resolved (see Camilo v Villa Livery Corp., 118 AD3d 586 [1st Dept 2014]; Tuberman v Hall, 61 AD3d 441 [1st Dept 2009]).

In opposition, plaintiffs failed to raise a triable issue of fact. Although plaintiffs physician found limitations in some ranges of motion, plaintiff failed to provide any objective medical evidence of injury to her back (see Komina v Gil, 107 AD3d 596 [1st Dept 2013]). Furthermore, plaintiff failed to submit any medical records or other evidence reflecting that she made complaints or received treatment for claimed back injuries contemporaneous to or soon after the accident (see Perl v Meher, 18 NY3d 208, 217-218 [2011]; Rosa v Mejia, 95 AD3d 402, 403-404 [1st Dept 2012]). Although the affirmation of plaintiffs physician shows some limitations in range of motion when he first examined her three months after the accident, without competent evidence in the record of any prior complaints or treatment, that is insufficient to raise a triable issue as to *503 causation (see Linton v Gonzales, 110 AD3d 534 [1st Dept 2013]).

We have considered plaintiffs remaining arguments and find them unavailing.

Concur — Mazzarelli, J.P., Andrias, Saxe, Feinman and Clark, JJ.

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126 A.D.3d 502, 5 N.Y.S.3d 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephanie-n-v-davis-nyappdiv-2015.

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