Opinion
06-07-2016
Meriam AFLALO, Plaintiff–Appellant, v. Leopeter ALVAREZ, Defendant–Respondent, Joanne Poccia, Defendant.
Dubow, Smith & Marothy, Bronx (Steven J. Mines of counsel), for appellant. Burke, Conway, Loccisano & Dillon, White Plains (Sean Levin of counsel), for respondent.
Dubow, Smith & Marothy, Bronx (Steven J. Mines of counsel), for appellant.
Burke, Conway, Loccisano & Dillon, White Plains (Sean Levin of counsel), for respondent.
Opinion Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about April 7, 2015, which, insofar as appealed from as limited by the briefs, granted the motion of defendant Leopeter Alvarez for summary judgment dismissing the claims of serious injury resulting in “significant” or “permanent consequential” limitation of use of plaintiff's knees within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Plaintiff alleges that she suffered a left knee injury and exacerbation of a right knee condition as a result of a motor vehicle accident. Defendant established, prima facie, that plaintiff did not sustain serious injury to either knee by submitting the affirmed report of an orthopedist, who found normal ranges of motion and negative test results, and diagnosed resolved sprains in both knees (see Holmes v. Brini Tr. Inc., 123 A.D.3d 628, 1 N.Y.S.3d 27 [1st Dept.2014] ; Gibbs v. Hee Hong, 63 A.D.3d 559, 881 N.Y.S.2d 415 [1st Dept.2009] ). The orthopedist noted that plaintiff did not disclose any preexisting conditions and that he had reviewed post-accident medical records only. Defendant also submitted the transcript of plaintiff's deposition, where she testified that she had been diagnosed and treated for arthritis in her right knee months before the motor vehicle accident.
In opposition, plaintiff failed to raise an issue of fact as to either her left knee or her right knee. As to her alleged left knee injury, her medical expert found only slight limitations in range of motion, which are insufficient for purposes of Insurance Law § 5102(d) (see Moore v. Almanzar, 103 A.D.3d 415, 959 N.Y.S.2d 180 [1st Dept.2013] ; Haniff v. Khan, 101 A.D.3d 643, 958 N.Y.S.2d 89 [1st Dept.2012] ). It is noted that the MRI report of plaintiff's radiologist, which compared MRIs taken before and after the accident, did not provide evidence of any injuries that were distinct from her preexisting condition (see Campbell v. Fischetti, 126 A.D.3d 472, 473, 5 N.Y.S.3d 79 [1st Dept.2015] ). Her medical expert also failed to adequately explain or describe the tests he used to measure the range of motion limitations that he found during his examination of plaintiff (see Gordon v. Tibulcio, 50 A.D.3d 460, 464, 855 N.Y.S.2d 515 [1st Dept.2008] ).
TOM, J.P., SWEENY, MOSKOWITZ, RICHTER, GESMER, JJ., concur.