Rivera v Gonzalez, 2013 NY Slip Op 04431 (1st Dept. 2013)
Plaintiff makes marked improvements and the deteriorates. Court in the 5102(d) setting requires an explanation.
“The affirmed reports of Dr. Shahid Mian, an orthopedist who examined plaintiff nearly two years after the accident, in March 2009, and again in 2011, are insufficient to raise an issue of fact because he failed to compare his measurements to normal ranges of motion (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Soho v Konate, 85 AD3d 522, 523 [1st Dept 2011]). Nor did he provide any explanation for any decrease in mobility following plaintiff’s improvement in 2007 (see e.g. Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011]).”
