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Travis v. Batchi

Appellate Division of the Supreme Court of New York, First Department
Jul 1, 2010
75 A.D.3d 411 (N.Y. App. Div. 2010)

Summary

granting summary judgment to defendants where plaintiff conceded that she worked from home beginning two months after the accident, and failed to detail the particular job and other activities that were curtailed

Summary of this case from Perpall v. Pavetek Corp.

Opinion

No. 2777.

July 1, 2010.

Order, Supreme Court, New York County (Edgar G. Walker, J.), entered April 9, 2009, which granted defendants' motion for summary judgment dismissing the complaint as to plaintiff-appellant (plaintiff) for lack of a serious injury, unanimously affirmed, without costs.

Grant Longworth, LLP, Bronx (Brett R. Hupart of counsel), for appellant.

Baker, McEvoy, Morrissey Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.

Before: Concur — Tom, J.P., Sweeny, Moskowitz, DeGrasse and Manzanet-Daniels, JJ.


The examination records of plaintiffs own treating physician/expert show that she had full strength and range of motion in the knee both a few weeks and a few months after the accident, after he performed a right knee anterior cruciate ligament reconstruction, partial medial and lateral meniscectomy and chondroplasty. Absent some manner of explanation, the negative findings cannot be reconciled with the physician's affirmation submitted in opposition to the motion prepared a few years after the accident, that plaintiff sustained a permanent injury to the knee as a result of the accident. Summary judgment in favor of defendants should be granted for this reason alone, at least with respect to the alleged knee injury ( see Pou v E S Wholesale Meats, Inc., 68 AD3d 446). Also fatal to plaintiff, on the issue of permanence of both the alleged knee and alleged back injuries, is the physician's failure to provide any objective medical test results showing current range-of-motion impairments ( cf. Jimenez v Rojas, 26 AD3d 256, 257). Nor does plaintiff, who concedes that she worked from home beginning two months after the accident through her return to the office five months after the accident, and fails to detail the particular job and other activities that were supposedly curtailed, satisfy the 90/180-day test ( see Uddin v Cooper, 32 AD3d 270, 271, lv denied 8 NY3d 808; Linton v Nawaz, 62 AD3d 434, 443, affd on other grounds 14 NY3d 821).


Summaries of

Travis v. Batchi

Appellate Division of the Supreme Court of New York, First Department
Jul 1, 2010
75 A.D.3d 411 (N.Y. App. Div. 2010)

granting summary judgment to defendants where plaintiff conceded that she worked from home beginning two months after the accident, and failed to detail the particular job and other activities that were curtailed

Summary of this case from Perpall v. Pavetek Corp.
Case details for

Travis v. Batchi

Case Details

Full title:SHEILA TRAVIS, Appellant, et al., Plaintiffs, v. NASSIROU M. BATCHI et…

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

Date published: Jul 1, 2010

Citations

75 A.D.3d 411 (N.Y. App. Div. 2010)
2010 N.Y. Slip Op. 5862
905 N.Y.S.2d 66

Citing Cases

Travis v. Batchi

Decided February 10, 2011. Appeal from the 1st Dept: 75 AD3d 411. Motions for leave to appeal…

Perpall v. Pavetek Corp.

However, courts have generally found a defendant's initial burden met where the plaintiff worked for more…