Opinion
11511 Index 303662/16
05-14-2020
Natisha MORRISON, Plaintiff–Appellant, v. Juan SANTANA, Defendant–Respondent.
Krentsel & Guzman, LLP, New York (Marcia K. Raicus of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondent.
Krentsel & Guzman, LLP, New York (Marcia K. Raicus of counsel), for appellant.
Marjorie E. Bornes, Brooklyn, for respondent.
Friedman, J.P., Gische, Kapnick, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered April 11, 2019, which granted defendant's motion for summary judgment dismissing the complaint due to plaintiff's inability to demonstrate that she sustained a serious injury to her right knee within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendant satisfied his prima facie burden of showing that plaintiff did not sustain a serious injury to her right knee by submitting the report of his orthopaedic surgeon, who found that plaintiff's knee had normal range of motion (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 102 N.Y.S.3d 588 [1st Dept. 2019] ; Mendoza v. L. Two Go, Inc., 171 A.D.3d 462, 96 N.Y.S.3d 576 [1st Dept. 2019] ), and opined that her emergency room records were inconsistent with her claimed right knee injury (see Streety v. Toure, 173 A.D.3d 462, 103 N.Y.S.3d 438 [1st Dept. 2019] ). Defendant also demonstrated that the claimed knee injury was not causally related to the accident based on the orthopaedic surgeon's finding that the operative report showed degenerative conditions not related to the accident (see Jenkins v. Livo Car Inc., 176 A.D.3d 568, 569, 112 N.Y.S.3d 10 [1st Dept. 2019] ; Santos v. Manga, 152 A.D.3d 416, 416, 58 N.Y.S.3d 354 [1st Dept. 2017] ).
In opposition, plaintiff failed to raise an issue of fact, since the uncertified and unaffirmed medical report of her expert could not be considered (see Luetto v. Abreu, 105 A.D.3d 558, 558, 963 N.Y.S.2d 112 [1st Dept. 2013] ). In any event, plaintiff's expert's last measurement of only about an eight-degree deficit in range of motion was too minor for purposes of Insurance Law § 5102(d) (see Cabrera v. Apple Provisions, Inc., 151 A.D.3d 594, 596, 57 N.Y.S.3d 471 [1st Dept. 2017] ; Aflalo v. Alvarez, 140 A.D.3d 434, 435, 31 N.Y.S.3d 866 [1st Dept. 2016] ). Plaintiff's expert also did not address the degenerative conditions he found during surgery or explain why plaintiff's current symptoms were not related to preexisting conditions (see Auquilla v. Singh, 162 A.D.3d 463, 464, 78 N.Y.S.3d 323 [1st Dept. 2018] ; Acosta v. Traore, 136 A.D.3d 533, 534, 24 N.Y.S.3d 652 [1st Dept. 2016] ).