Diakite v. Soderstrom

Nov 22, 2011
Versions:89 A.D.3d 607
933 N.Y.2d 34

Defendants established prima facie that plaintiff did not sustain a serious injury of a permanent nature by submitting plaintiff‘s medical records and the affirmed reports of medical experts who, upon examination, found that plaintiff had active mobility of his left shoulder and had recovered from the 2009 vehicular accident without any disability. In opposition, plaintiff failed to raise a triable issue of fact. The limitation in range of motion in his left shoulder found by his treating physician in November 2010 was insufficient to qualify as “significant,” given the otherwise normal shoulder findings. Moreover, one year earlier the physician had found “active mobility of [plaintiff‘s] left shoulder with no significant pain,” and yet no explanation was offered for the more recent finding of limitation (see Insurance Law § 5102 [d]; Jno-Baptiste v Buckley, 82 AD3d 578 [2011]).

We have reviewed plaintiff‘s remaining contentions and find them unavailing. Concur—Moskowitz, J.P., Renwick, DeGrasse, Abdus-Salaam and Román, JJ.