Tobiolo v. Friedman

283 A.D.2d 483, 724 N.Y.S.2d 651, 2001 N.Y. App. Div. LEXIS 4993

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Phelan, J.), dated July 19, 2000, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendant met her initial burden of establishing, as a matter of law, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting, inter alia, the affirmed medical reports of an orthopedist and neurologist, based upon recent examinations of the plaintiff (see, Gaddy v Eyler, 79 NY2d 955; Licari v Elliott, 57 NY2d 230, 236).

In opposition to the defendant’s motion, the plaintiff submitted, inter alia, numerous reports that were not in admissible form (see, Grasso v Angerami, 79 NY2d 813, 814; Gleason v Huber, 188 AD2d 581). Furthermore, the two affirmations of the plaintiffs physicians were based on examinations of the plaintiff conducted over one year before the motion for summary judgment. Those projections of permanent limitations have no probative value in the absence of a recent examination (see, Bidetto v Williams, 276 AD2d 516; Mohamed v Dhanasar, 273 AD2d 451; Kauderer v Penta, 261 AD2d 365; Evans v Mohammad, 243 AD2d 604). Moreover, those affirmations failed to state what, if any, objective tests were performed to determine the range of motion of the plaintiffs spine and shoulder (see, Monaco v Davenport, 277 AD2d 209; Grossman v Wright, 268 AD2d 79, 85; Smith v Askew, 264 AD2d 834; Kauderer v Penta, supra; Lobo v Singh, 259 AD2d 523). Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.