Boone v Elizabeth Taxi, Inc. (2014 NY Slip Op 06530)
Boone v Elizabeth Taxi, Inc.
2014 NY Slip Op 06530
Decided on September 30, 2014
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on September 30, 2014Sweeny, J.P., Renwick, Saxe, Freedman, Richter, JJ.


12462 101509/11

[*1] Crush Boone, Plaintiff-Appellant,
vElizabeth Taxi, Inc., et al., Defendants-Respondents.
Levine & Gilbert, New York (Harvey A. Levine of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Colin F. Morrissey of counsel), for respondents.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered March 7, 2013, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff alleged in his bill of particulars that, as a result of an accident in which he was thrown from his bicycle after being hit by defendants' taxi, he suffered cervical spine injury, and that he complained of neck and bilateral wrist pain after the accident, but that X rays taken at the time "apparently were negative." Plaintiff alleged, inter alia, injury under the permanent consequential limitations in use and 90/180-day categories of Insurance Law § 5102(d).
Defendants met their prima facie burden of demonstrating the absence of permanent consequential limitations in use injuries by submitting, inter alia, affirmed expert medical reports finding full range of motion in the cervical spine and wrists, negative test results and no objective evidence of permanent injury in plaintiff's cervical spine or wrists (see Kone v Rodriguez, 107 AD3d 537 [1st Dept 2013]). Defendants also submitted a report by their radiologist opining that plaintiff's claimed cervical spine injuries were chronic and degenerative, and not causally related to the subject accident (see Nova v Fontanez, 112 AD3d 435 [1st Dept 2013]).
In opposition, plaintiff failed to offer evidence of permanent consequential limitations in use of his cervical spine or wrists caused by the accident (see Vasquez v Almanzar, 107 AD3d 538, 539 [1st Dept 2013]). Instead, plaintiff raised for the first time a new serious injury claim under Insurance Law § 5102(d), namely, that he sustained a fracture in his left wrist. In support, he offered the affirmation of a radiologist, which, contrary to the motion court's determination, was in sufficient compliance with the requirements of CPLR 2106 (see e.g. Dennis v New York City Tr. Auth., 84 AD3d 579 [1st Dept 2001]). The radiologist had recently reviewed the post-accident left-wrist MRI and averred that it showed a nondisplaced fracture of the scaphoid. However, it was error for the court to consider this new serious injury claim, since plaintiff did not plead a fracture injury in the bill of particulars (see Christopher V. v James A. Leasing, Inc., 115 AD3d 462 [1st Dept 2014]; Marte v New York City Tr. Auth., 59 AD3d 398 [2d Dept 2009]).
Defendants also met their prima facie burden with respect to plaintiff's 90/180-day claim by submitting plaintiff's deposition testimony in which he claimed that he was only confined to [*2]his bed and home for a month after the subject accident (see Komina v Gil, 107 AD3d 596, 597 [1st Dept 2013]). In opposition, plaintiff failed to submit competent medical evidence contradicting this testimony and, furthermore, his submissions failed to address defendants' showing that his cervical spine injuries were degenerative and preexisting (see Nova, 112 AD3d at 436; Bravo v Martinez, 105 AD3d 458, 459 [1st Dept 2013]).
The Decision and Order of this Court entered herein on May 13, 2014 is hereby recalled and vacated (see M-3037 decided simultaneously herewith).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 30, 2014
CLERK


