Borino v. Little

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated April 29, 1999, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Renee Borino did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed, with costs. The defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting the reports of two orthopedic surgeons that the plaintiff Renee Borino (hereinafter the plaintiff) did not sustain any restrictions in range of motion due to the accident in question and could resume her normal activities. In opposition, the plaintiff failed to submit sufficient evidence to create a triable issue of fact regarding whether she sustained a serious injury within the meaning of [263] Insurance Law § 5102 (d). The reports submitted by the plaintiffs treating chiropractor and orthodontist were not based upon a recent examination of the plaintiff and are therefore insufficient (see, Calcagno v New York City Tr. Auth., 266 AD2d 421; Alvarez v Ming Chao Wong, 266 AD2d 248). In any event, the reports failed to explain the more than 3V2 year gap in treatment immediately preceding the submission of the reports (see, Dimenshteyn v Caruso, 262 AD2d 348). Contrary to the determination of the Supreme Court, the unsworn report of the plaintiffs orthopedic surgeon was properly before it because the report was submitted by the defendants in support of the motion for summary judgment (see, Pagano v Kingsbury, 182 AD2d 268). Nevertheless, that report was insufficient to defeat the motion. While the orthopedic surgeon stated that the plaintiff suffered from “chronic cervical strain, chronic impingement syndrome, and myofascial pain syndrome” as a result of the accident, he failed to quantify any restriction in the plaintiffs range of motion (see, Grossman v Wright, 268 AD2d 79; Thompson v Cochran, 253 AD2d 871; Wilkins v Cameron, 214 AD2d 557). Additionally, that report is not based upon a recent examination of the plaintiff (see, Calcagno v New York City Tr. Auth., supra; Alvarez v Ming Chao Wong, supra). Finally, the plaintiff failed to demonstrate that she was prevented from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see, Licari v Elliott, 57 NY2d 230;Almonacid v Meltzer, 222 AD2d 631). Bracken, J. P., Joy, Thompson and Feuerstein, JJ., concur. Goldstein, J., dissents and votes to reverse the order appealed from, on the law, and to deny the motion, with the following memorandum.