No explanation of deficits in range of motion after findings of improved range within four months of accident: Appellate Division reverses motion court's denial of summary judgment on "serious injury"

Nova v. Fontanez, ___ A.D.3d ____ (1st Dep't December 5, 2013)

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Plaintiff failed to demonstrate his alleged "significant limitation of use" or "permanent consequential limitation of use" in an action arising out of a motor vehicle accident, according to the unanimous panel. With reversal of the lower court's decision, the complaint against the defendant is dismissed.

Defendant made a prima facie showing of no "serious injury" by submitting the affirmed reports of an orthopedist and radiologist. In opposition, plaintiff's physician's report was insufficient to raise an issue of fact. Though the physician opined that pre-existing conditions were aggravated by the accident, the report lacked "any basis for determining the extent of exacerbation". What's more, plaintiff "failed to explain the inconsistencies between plaintiff’s treating physician’s findings of improved range of motion within four months of accident and present findings of deficits."

AGF&J associate Dennis Monaco briefed and argued the appeal.