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Reynolds v. Cleary

Appellate Division of the Supreme Court of New York, Second Department
Jul 24, 2000
274 A.D.2d 509 (N.Y. App. Div. 2000)

Opinion

Submitted May 31, 2000

July 24, 2000.

In an action to recover damages for personal injuries, the defendant Sean W. Lally appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Golia, J.), dated July 22, 1999, as denied his cross motion for summary judgment dismissing the complaint insofar as asserted against him.

Frank V. Merlino, Garden City, N.Y. (David Holmes of counsel), for appellant.

Peter C. Merani, New York, N.Y., for respondent (no brief filed).

Before: CORNELIUS J. O'BRIEN, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, LEO F. McGINITY, NANCY E. SMITH, JJ.


DECISION ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed insofar as asserted against the appellant.

The appellant established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) through the affirmed report of Dr. Eduardo Alvarez, an orthopedist, who examined the plaintiff and concluded that the results of the examination were normal (see, Gaddy v. Eyler, 79 N.Y.2d 955).

The affirmation of Dr. Leo Batash, as well as an accompanying medical report, which the plaintiff submitted in opposition to the motion, failed to provide objective evidence of the extent or degree of limitation in the range of motion of the plaintiff's right shoulder (see, Beckett v. Conte, 176 A.D.2d 774). Dr. Batash failed to set forth what objective tests he performed in reaching his conclusions regarding restrictions in the range of motion (see, Smith v. Askew, 264 A.D.2d 834). Moreover, Dr. Batash's affirmation and report did not provide an explanation for the four-year gap in medical treatment between 1995, when the plaintiff was first treated by Dr. Batash, and 1999, when the plaintiff again was treated by Dr. Batash (see, Marshall v. Albano, 182 A.D.2d 614).


Summaries of

Reynolds v. Cleary

Appellate Division of the Supreme Court of New York, Second Department
Jul 24, 2000
274 A.D.2d 509 (N.Y. App. Div. 2000)
Case details for

Reynolds v. Cleary

Case Details

Full title:AINSLEY A. REYNOLDS, RESPONDENT, v. CYNTHIA M. CLEARY, DEFENDANT, SEAN W…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 24, 2000

Citations

274 A.D.2d 509 (N.Y. App. Div. 2000)
711 N.Y.S.2d 476

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