Rowe v. Wahnow

OPINION OF THE COURT Per Curiam. Order, dated March 12, 2008, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly. Defendant established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Defendant’s examining physicians found that plaintiff had recovered from soft tissue injuries, without neurological or orthopedic disability, and had normal ranges of motion (see Gorden v Tibulcio, 50 AD3d 460 [2008]; Johnson v Paulino, 49 AD3d 379 [2008]; Rossi v Alhassan, 48 AD3d 270 [2008]). Plaintiff’s opposition papers, lacking any “objective medical findings based on a recent medical examination” (Thompson v Abbasi, 15 AD3d 95, 98 [2005]), were insufficient to raise a triable issue. Aside from several visits to defendant’s examining doctors, and alleged testing and physical therapy (reports of which were not submitted), the record lacks any evidence of plaintiffs treatment for injuries allegedly sustained in this motor vehicle accident. Nor does the record disclose the existence of a triable issue as to whether plaintiff sustained a nonpermanent injury that prevented her from performing substantially all material daily activities for at least 90 of the first 180 days following the accident. In reaching this result, we do not intend to minimize the concerns voiced by the dissent over the use of independent medi [10] cal examinations conducted in the context of claims for first-party no-fault benefits. However, in our judgment, this is an inappropriate case to authoritatively address those concerns, where both sides have charted their litigation course by affirmatively relying, both below and on appeal, on the same independent medical examination reports whose perceived misuse the dissenter now invokes, without input from the parties, as the sole basis for deciding the appeal. “For us now to decide this appeal on a distinct ground that we winkled out wholly on our own would pose an obvious problem of fair play” (Misicki v Caradonna, 12 NY3d 511, 519 [2009]).