Booth v. Milstein , 146 A.D.3d 652 ( 2017 )

Booth v Milstein (2017 NY Slip Op 00446)

Booth v Milstein

2017 NY Slip Op 00446

Decided on January 24, 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 January 24, 2017
Sweeny, J.P., Renwick, Andrias, Kahn, Gesmer, JJ.

2858 158714/12

[*1]Robert Booth, Plaintiff-Appellant,

v

Ilo Milstein also known as Ilo Milton, Defendant-Respondent.

Raymond Schwartzberg & Associates, PLLC, New York (Raymond Schwartzberg of counsel), for appellant.

Sweetbaum & Sweetbaum, New Hyde Park (Brian J. Daly of counsel), for respondent.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered November 6, 2015, which, in this action for personal injuries sustained in a motor vehicle accident, granted defendant's motion for summary judgment dismissing the complaint on the threshold issue of serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendant established entitlement to judgment as a matter of law by showing that plaintiff did not sustain a serious injury to his lumbar spine. Defendant submitted, inter alia, the affirmed report of a neurologist, who found full range of motion and normal test results, and opined that plaintiff's injuries had resolved (see Birch v 31 N. Blvd., Inc., 139 AD3d 580 [1st Dept 2016]; Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd 24 NY3d 1191 [2015]).

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff did not submit recent evidence of limitations in his lumbar spine (see Haniff v Khan, 101 AD3d 643, 644 [1st Dept 2012]), and although plaintiff's chiropractor found limitations upon examination approximately two years after the accident, he did not reconcile those findings with earlier findings of normal or near normal range of motion made by another treating physician (see Colon v Torres, 106 AD3d 458 [1st Dept 2013]; Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011]).

In view of the foregoing, the issue of liability is academic (see Angeles v Versace Inc., 124 AD3d 544, 545 [1st Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 24, 2017

CLERK