Opinion
2011-12-27
Donata MITCHELL, Plaintiff–Respondent, v. Juan C. CALLE, et al., Defendants–Appellants.
White Fleischner & Fino, LLP, New York (Jennifer L. Coviello of counsel), for appellants. Ephrem J. Wertenteil, New York, for respondent.
White Fleischner & Fino, LLP, New York (Jennifer L. Coviello of counsel), for appellants. Ephrem J. Wertenteil, New York, for respondent.
MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RENWICK, FREEDMAN, JJ.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered January 25, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss the 90/180–day claim, and otherwise affirmed, without costs.
Defendants concede that plaintiff has a meniscal tear in her left knee, and their radiologist's report is too equivocal to make a prima facie showing that the tear was not caused by the accident ( see Glynn v. Hopkins, 55 A.D.3d 498, 498, 867 N.Y.S.2d 391 [2008] ), especially given plaintiff's relatively young age at the time of the accident ( see June v. Akhtar, 62 A.D.3d 427, 428, 878 N.Y.S.2d 59 [2009] ). However, defendants made a prima facie showing that plaintiff did not sustain a “permanent consequential limitation of use” of the knee within the meaning of Insurance Law § 5102(d) by submitting the affirmed reports of medical experts who opined that she had normal range of motion in the knee and that any symptoms had fully resolved ( see Dembele v. Cambisaca, 59 A.D.3d 352, 352, 874 N.Y.S.2d 72 [2009]; Gibbs v. Hee Hong, 63 A.D.3d 559, 559, 881 N.Y.S.2d 415 [2009] ). The affirmed reports are competent evidence, notwithstanding that the experts relied on the uncertified emergency room records and other unsworn medical records ( see Pommells v. Perez, 4 N.Y.3d 566, 577 n. 5, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
In response, plaintiff submitted the affirmed reports of her treating physiatrist and the orthopedic surgeon who performed her knee surgery, who both found persisting limitations in range of motion of the left knee with discomfort, and described the qualitative nature of plaintiff's limitations based on the normal function, purpose, and use of the knee. In addition, plaintiff submitted an unsworn MRI report of the left knee stating that there was a small effusion suggesting a meniscal tear. Plaintiff's evidence raised an issue of fact as to whether she sustained a permanent consequential limitation of use of the knee ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002]; Salman v. Rosario, 87 A.D.3d 482, 928 N.Y.S.2d 531 [2011] ). Although the MRI report is unsworn, plaintiff could rely on it since defendants submitted it in support of their motion ( Lazarus v. Perez, 73 A.D.3d 528, 528, 901 N.Y.S.2d 39 [2010] ). Plaintiff also adequately explained the gap in treatment by testifying that she stopped treatment because her no-fault benefits terminated ( see Wadford v. Gruz, 35 A.D.3d 258, 259, 826 N.Y.S.2d 57 [2006] ).
The court, however, should have dismissed the 90/180–day claim. Defendants made a prima facie showing that plaintiff did not suffer a 90/180–day injury, and plaintiff failed to raise a triable issue of fact. Indeed, plaintiff testified that, after the accident, she was confined to bed for only three days and to home for a only week ( see Salman, 87 A.D.3d at 484, 928 N.Y.S.2d 531). Further, the claimed restrictions in her usual and customary activities are unsupported by objective medical evidence ( see Nelson v. Distant, 308 A.D.2d 338, 340, 764 N.Y.S.2d 258 [2003] ).
We have considered defendants' remaining contentions and find them unavailing.