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Colleen M. Tabasko v. Bridget M. Cirillo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 16, 2011

COLLEEN M. TABASKO, PLAINTIFF-APPELLANT,
v.
BRIDGET M. CIRILLO, DEFENDANT-RESPONDENT.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 5, 2011 - Decided: Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-471-08.

Ballard & Dragan, attorneys for appellant (Robert A. Ballard, Jr., on the brief). Leary, Bride, Tinker & Moran, attorneys for respondent (David J. Dering, of counsel and on the brief).

On November 30, 2006, a motor vehicle driven by defendant Bridget M. Cirillo stuck the motor vehicle operated by plaintiff Colleen Tabasko. Plaintiff suffered a fracture of the right radial head and obtained medical treatment and physical therapy over the course of two months.

Plaintiff filed a complaint seeking compensatory damages for the injury sustained in the accident. Her treating physician produced a certification of permanency. Nevertheless, defendant moved for summary judgment. Defendant argued that the permanency opinion rendered by plaintiff's treating physician is a net opinion and completely unsupported by his narrative report. The motion judge agreed and granted the motion.

On appeal, plaintiff argues that the motion judge erred because the record contains ample evidence of permanent injury. She also complains that the motion judge erred by dismissing the case in its entirety in the face of plaintiff's wage loss claim.

We affirm dismissal of the personal injury "non-economic" aspect of the complaint substantially for the reasons expressed by the motion judge in his Memorandum of Decision on Motion. Notably, the motion judge emphasized that the narrative report related "healing of the radial head fracture." Moreover, the October 22, 2009 report simply reports findings from plaintiff's last visit on January 25, 2007, two months following the accident. Plaintiff's treating physician did not treat plaintiff following the January 25, 2007 visit. The physician's September 9, 2008 certification of permanency is, therefore, unsupported by any objective medical data.

We note, however, that plaintiff did submit details concerning her lost wage claim in response to the motion for summary judgment. Defendant argues the lost wage claim was presented to support plaintiff's claim of physical limitation caused by the motor vehicle accident and that the claim is de minimis. The motion judge did not address this aspect of plaintiff's claim and we are not in a position to exercise original jurisdiction to review the merits of this claim. We, therefore, affirm the summary judgment to the extent that it dismisses plaintiff's complaint to recover damages for the personal injury sustained in the accident but reverse and remand for further consideration of the lost wage claim.

Affirmed in part; reversed and remanded in part.

20110216

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