Opinion
8226 Index 304544/15
01-29-2019
Prince AMPOFO, Plaintiff–Appellant, v. Thomas KEY, Jr., et al., Defendants–Respondents.
Okun, Oddo & Babat, P.C., New York (Darren R. Seilback of counsel), for appellant. Thomas M. Bona, P.C., White Plains (Heather Julien of counsel), for respondents.
Okun, Oddo & Babat, P.C., New York (Darren R. Seilback of counsel), for appellant.
Thomas M. Bona, P.C., White Plains (Heather Julien of counsel), for respondents.
Friedman, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.
Defendants established prima facie that plaintiff's claimed right ankle and foot sprains were not serious injuries within the meaning of Insurance Law § 5102(d) through affirmed reports by their orthopedist, who documented normal range of motion (see Hernandez v. Adelango Trucking, 89 A.D.3d 407, 931 N.Y.S.2d 317 [1st Dept. 2011] ; Whisenant v. Farazi, 67 A.D.3d 535, 891 N.Y.S.2d 13 [1st Dept. 2009] ). They also submitted an affirmed report by an orthopedic surgeon who performed a no-fault peer review, which noted that plaintiff's MRI reports showed osteoarthritis and other conditions, and opined that the right ankle arthroscopy performed four months after the collision was not medically necessary or causally related to the accident.
In opposition, plaintiff failed to raise a triable issue of material fact. He was never diagnosed with anything more severe than a foot or ankle sprain, and his treating podiatrist measured a limitation of only five degrees in one plane of motion at a recent examination (see Gaddy v. Eyler, 79 N.Y.2d 955, 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ; Hernandez v. Adelango Trucking, 89 A.D.3d at 408, 931 N.Y.S.2d 317 ; Charlton v. Almaraz, 278 A.D.2d 145, 718 N.Y.S.2d 52 [1st Dept. 2000] ).
We have considered plaintiff's remaining contentions and find them unavailing.