Shapira v. City of New York

Order, Supreme Court, New York County (Carol E. Huff, J.), entered September 21, 2009, which granted defendants’ motions to dismiss the complaint, and order, same court and Justice, entered October 16, 2008, which denied plaintiffs motion for a new trial, unanimously affirmed, without costs.

Plaintiff’s failure to present objective evidence of physical limitations attributable to the disc herniations seen on her MRIs is fatal to her claim of serious injury to her spine (Pommells v Perez, 4 NY3d 566, 574 [2005]). As to her claim of significant disfigurement as a result of a nasal fracture, plaintiffs contention that the trial court gave her too short a continuance to obtain the hospital records that would document the fracture is unavailing, since the record demonstrates that the absence of competent evidence at trial was due either to a deliberate tactical decision by her counsel not to procure records that were readily available or to a lack of due diligence on his part (see Matter of Steven B., 6 NY3d 888 [2006]). Concur—Friedman, J.P., Sweeny, Nardelli and Freedman, JJ.