

Rose v Tall (2017 NY Slip Op 02947)





Rose v Tall


2017 NY Slip Op 02947


Decided on April 18, 2017


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 April 18, 2017

Friedman, J.P., Renwick, Moskowitz, Feinman, Kapnick, JJ.


3764 301666/13

[*1]Verina Rose, Plaintiff-Appellant,
v Ousmane Tall, et al., Defendants-Respondents, Colete Dana Jones, Defendant.


Krentsel & Guzman, LLP, New York (Steven E. Krentsel of counsel), for appellant.
Marjorie E. Bornes, Brooklyn, for respondents.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about March 30, 2016, which granted defendants' motions for summary judgment dismissing the complaint based on plaintiff's inability to meet the serious injury threshold under Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants established prima facie that plaintiff did not sustain a serious injury to her lumbar spine through the affirmed reports of their neurologist, who found no limitations as a result of the accident, and radiologist, who, after review of plaintiff's MRI films, found no injuries related to the subject accident (see Green v Jones, 133 AD3d 472 [1st Dept 2015]). Defendants also relied on reports prepared by plaintiff's treating neurologist, who found minimal limitations in range of motion at examinations conducted months after the accident.
In opposition, plaintiff submitted the report of her neurologist, who reviewed the MRI himself, and opined that plaintiff sustained a disc herniation as a result of the accident. However, his report is insufficient to raise a triable issue of fact because, on his initial examination, he found normal to near-normal range of motion, which did not qualify as a serious injury (see Eisenberg v Guzman, 101 AD3d 505 [1st Dept 2012]). Furthermore, on a more recent examination, that neurologist found a deficit in one plane and normal to near-normal range of motion in all other planes, and failed to explain the inconsistencies between his earlier findings of almost full range of motion and his present findings of additional deficits, rendering his opinion speculative (see Santos v Perez, 107 AD3d 572, 574 [1st Dept 2013]; Colon v Torres, 106 AD3d 458 [1st Dept 2013]). Plaintiff's showing of relatively minor limitations was insufficient to sustain a serious injury claim (see Gaddy v Eyler, 79 NY2d 955 [1992]; Cattouse v Smith, 146 AD3d 670, 672 [1st Dept 2017]).
Defendants also demonstrated that plaintiff did not suffer a 90/180-day claim by relying on her deposition testimony that she was confined to home and bed for just two days after the accident (see Frias v Son Tien Liu, 107 AD3d 589, 590 [1st Dept 2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 18, 2017
CLERK


