Thaler v. Aspen Ready Mix Corp.

286 A.D.2d 763, 730 N.Y.S.2d 717, 2001 N.Y. App. Div. LEXIS 8698

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 24, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Berke, J.), dated December 12, 2000, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Joel Thaler did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants’ motion for summary judgment was timely (see, Di Rosario v Williams, 276 AD2d 583).

Moreover, the medical evidence submitted in support of the defendants’ motion established prima facie that the plaintiff Joel Thaler did not, as a result of the subject accident, sustain a serious injury based on loss of hearing (see, Gaddy v Eyler, 79 NY2d 955, 956-957). Further, it can be inferred from Mr. Thaler’s deposition testimony that any orthopedic injuries which he sustained in the accident had long since resolved.

The medical evidence submitted by the plaintiffs in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]). Notably, the plaintiffs’ expert, Dr. Jill Bressler, failed to specify in her affirmed report the objective tests she used in arriving at her conclusions regarding alleged restrictions in Mr. Thaler’s range of motion (see, Grossman v Wright, 268 AD2d 79). Accordingly, the defendants’ motion should have been granted. O’Brien, J. P., S. Miller, McGinity, Schmidt and Townes, JJ., concur.