Ames v. Paquin , 837 N.Y.S.2d 389 ( 2007 )

Rose, J. (concurring in part and dissenting in part).

I respectfully dissent from so much of the majority’s decision as found that defendants failed to meet their initial burden to demonstrate that plaintiff did not sustain a qualifying serious injury under the 90/180-day category. Initially, it must be noted that plaintiff effectively concedes this point by raising no argument in his brief as to whether defendants met their burden (see CPLR 3212 [b]) and, thus, the issue should be deemed abandoned (see Peak v Northway Travel Trailers, Inc., 27 AD3d 927, 928 [2006]; Dunn v Northgate Ford, Inc., 16 AD3d 875, 876 n 2 [2005]; see also Granger v Keeter, 23 AD3d 886, 888 [2005]). In any event, contrary to the majority’s view, the report of defendants’ expert, a board-certified orthopedic surgeon, does not limit his opinion that there were no objective physical findings of a qualifying serious injury to pláintiffis medical condition at the time of the independent medical exam. The expert reviewed plaintiff’s early medical records and MRIs in great detail and asserted that he found no evidence of any objective physical findings of serious injury. The burden thus having shifted to plaintiff, Supreme Court correctly concluded thát he failed to submit evidence based on objective findings of a medically determined injury or impairment of a nonpermanent nature which caused the alleged limitations on his daily activities (see Tuna v Babendererde, 32 AD3d 574, 577 [2006]; June v Gonet, 298 AD2d 811, 812 [2002]; Monk v Dupuis, 287 AD2d 187, 190-191 [2001]). Accordingly, I would affirm Supreme Court’s order in all respects.

Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants’ and third-party defendant’s motions for summary judgment dismissing that part of the complaint as alleged that plaintiff suffered a serious injury in the 90/180-day category; motions denied to that extent; and, as so modified, affirmed.