JASON BRAND plf-ap, v. KEVIN EVANGELISTA, def-res

9327. JASON BRAND plf-ap, v. KEVIN EVANGELISTA, def-res — Frommer & Cerrato, LLP, Garden City (Stephen G. Frommer of counsel), for ap — Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for res — Order, Supreme Court, New York County (George J. Silver, J.), entered December 14, 2011, which granted defendant's motion for summary judgment dismissing the complaint based on the failure to establish a serious injury pursuant to Insurance Law §5102(d), unanimously affirmed, without costs.

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9327. JASON BRAND plf-ap, v. KEVIN EVANGELISTA, def-res — Frommer & Cerrato, LLP, Garden City (Stephen G. Frommer of counsel), for ap — Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for res — Order, Supreme Court, New York County (George J. Silver, J.), entered December 14, 2011, which granted defendant’s motion for summary judgment dismissing the complaint based on the failure to establish a serious injury pursuant to Insurance Law §5102(d), unanimously affirmed, without costs.

Defendant established his entitlement to judgment as a matter of law dismissing plaintiff’s claims pursuant to Insurance Law §5102(d) by submitting, inter alia, affirmed reports of a neurologist and an orthopedist who opined that plaintiff had no residuals from his recent back surgery, and no deficits in his range-of-motion testing (see Spencer v. Golden Eagle, Inc., 82 AD3d 589, 590—591 [1st Dept 2011]). The experts’ use of slightly different normal values in performing one diagnostic test was too minor to be considered significant (see Anderson v. Zapata, 88 AD3d 504 [1st Dept 2011]; Feliz v. Fragosa, 85 AD3d 417, 418 [1st Dept 2011]). Moreover, the finding by one of defendant’s physicians of a minor limitation in one plane of range of motion in plaintiff’s lumbar spine was “insignificant for purposes of Insurance Law §5102(d)’” (see Vega v. MTA Bus Co., 96 AD3d 506, 507 [1st Dept 2012], quoting Rosa—Diaz v. Maria Auto Corp., 79 AD3d 463, 464 [1st Dept 2010]). Nor were defendant’s physicians required to review plaintiff’s medical records, since they detailed the specific tests they used in their personal examination of plaintiff, which revealed full range of motion (see Fuentes v. Sanchez, 91 AD3d 418, 419 [1st Dept 2012]; Zhijian Yang v. Alston, 73 AD3d 562 [1st Dept 2010]).

JASON BRAND plf-ap, v. KEVIN EVANGELISTA, def-res

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