Opinion
12179 Index No. 303336/16 Case No. 2019-03656
10-27-2020
Jonathan OLIVARE, Plaintiff–Appellant, v. William TOMLIN, et al., Defendants–Respondents.
Krentsel & Guzman, LLP, New York (Marcia K. Raicus of counsel), for appellant. Abrams, Gorelick, Friedman & Jacobson, LLP, New York (Jay S. Gunsher of counsel), for respondents.
Krentsel & Guzman, LLP, New York (Marcia K. Raicus of counsel), for appellant.
Abrams, Gorelick, Friedman & Jacobson, LLP, New York (Jay S. Gunsher of counsel), for respondents.
Kapnick, J.P., Webber, Gonza´lez, Shulman, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about August 7, 2019, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the claim of serious injury to the right knee ( Insurance Law § 5102[d] ), unanimously affirmed, without costs.
Defendants made a prima facie showing that plaintiff did not sustain a serious injury to his right knee by submitting the report of their orthopedic surgeon, who found only a slight limitation in range of motion and opined that plaintiff's injury had resolved (see Stovall v. New York City Tr. Auth. , 181 A.D.3d 486, 117 N.Y.S.3d 840 [1st Dept. 2020] ; Bianchi v. Mason , 179 A.D.3d 567, 118 N.Y.S.3d 559 [1st Dept. 2020] ). Defendants also submitted plaintiff's deposition testimony acknowledging that he was physically limited for about six days after the accident and his orthopedist's report acknowledging that his MRI was unremarkable except for an unrelated condition.
In opposition, plaintiff failed to raise an issue of fact. His expert did not compare the measured range of motion in his right knee to normal values (see Campbell v. Wendt , 152 A.D.3d 413, 54 N.Y.S.3d 855 [1st Dept. 2017] ; Stevens v. Bolton , 135 A.D.3d 647, 24 N.Y.S.3d 269 [1st Dept. 2016] ) or explain the orthopedist's finding a year earlier of greater range of motion (see Jno–Baptiste v. Buckley , 82 A.D.3d 578, 578–579, 919 N.Y.S.2d 22 [1st Dept. 2011] ). Plaintiff's expert also failed to address the absence of objective evidence of injury related to the accident in plaintiff's MRI (see Monahan v. Reyes , 184 A.D.3d 460, 123 N.Y.S.3d 828 [1st Dept. 2020] ; Williams v. Laura Livery Corp. , 176 A.D.3d 557, 112 N.Y.S.3d 16 [1st Dept. 2019] ). The medical records show at most a minor or insignificant injury that does not constitute a serious injury resulting in significant or permanent limitation in use of the right knee ( Gaddy v. Eyler , 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ). Plaintiff's allegations in his bill of particulars that he was confined to bed for six days and home for 11 days after the accident and his deposition testimony that he was confined to bed for about one or two days after the accident defeat his 90/180-day injury claim (see Tejada v. LKQ Hunts Point Parts , 166 A.D.3d 436, 437–438, 88 N.Y.S.3d 156 [1st Dept. 2018] ).