Sullivan v. JohnsonSullivan v. Johnson
Ordered that the order is reversed, on the lаw, with costs, and that branch of the defendant‘s motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of
Contrary to the Supreme Court‘s determination, the defendant failеd to satisfy her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of
Dillon, J. (dissenting and voting to affirm the order appealed from). I respectfully dissent.
My colleagues conclude that the affirmed medical report of the defendant‘s orthoрedic surgeon, Michael Brooks, fails to establish the defendant‘s prima facie entitlement to summary judgment, as the report notes certain restrictions in the plaintiff‘s range of motion. However, the medical rеport also notes, very clearly, that any complaints or restriсtions are not causally related to the subject accident which is a basis for an award of summary judgment (see Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]; Kearse v New York City Tr. Auth., 16 AD3d 45, 49 [2005]; McNeil v Dixon, 9 AD3d 481, 482 [2004]). The orthopedic surgeon‘s opinion is not conclusory, as it is based upon objective tests administered during a physical examination of the plaintiff and upon a review of medical records showing a history of significant degenerativе arthritic pathology (see Garcia v Mangaru, 16 AD3d 547 [2005]; Daley v Shahzad, 13 AD3d 475, 476 [2004]; Paul v Trerotola, 11 AD3d 441, 442 [2004]). Therefore, the defendant establishеd her prima facie entitlement to judgment as a matter of law by tendering competent evidence that the plaintiff did not sustain a serious injury within thе meaning of
The papers submitted by the plaintiff in opposition to thе defendant‘s motion failed to raise a question of fact requiring trial, as the reports of the plaintiff‘s treating physician were not based on a recent examination of the plaintiff (see Gomez v Epstein, 29 AD3d 950, 951 [2006]; Legendre v Bao, 29 AD3d 645, 646 [2006]; Barzey v Clarke, 27 AD3d 600 [2006]). Moreover, the affirmation of the plaintiff‘s examining osteopath and its annexed report failed to establish that any limitations in the plaintiff‘s range of motiоn were contemporaneous with the subject accident (seе Felix v New York City Tr. Auth., 32 AD3d 527, 528 [2006]; Ramirez v Parache, 31 AD3d 415, 416 [2006]; Ranzie v Abdul-Massih, 28 AD3d 447, 448 [2006]). The reports of the plaintiff‘s cervical and lumbar magnetic resonance imaging studies fail to evidence the extent of alleged physical limitations and their duration (see Mejia v DeRose, 35 AD3d 407 [2006]; Yakubov v CG Trans Corp., 30 AD3d 509, 510 [2006]; Cerisier v Thibiu, 29 AD3d 507, 508 [2006]). The plaintiff further failed to submit cоmpetent medical evidence that he was unable to perform substantially all of his usual and customary daily activities for not less than 90 of the first 180 days after
Accordingly, I would affirm the order appealed from granting that branch of the defendant‘s motion which was for summary judgment dismissing the complaint.