Opinion
12339 Index No. 159817/16 Case No. 2019-5920
11-12-2020
John TARJAVAARA, Plaintiff–Appellant, v. Lynda CONSIDINE, et al., Defendants–Respondents.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant. Buratti, Rothenberg & Burns, White Plains (Vanessa A. Gomez of counsel), for respondents.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant.
Buratti, Rothenberg & Burns, White Plains (Vanessa A. Gomez of counsel), for respondents.
Gische, J.P., Gesmer, Kern, Kennedy, JJ.
Order, Supreme Court, New York County (Adam Silvera, J.), entered July 5, 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 and the 90/180-day claim pursuant to Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants established prima facie that plaintiff did not sustain an injury that resulted in the "permanent consequential limitation" or "significant limitation" of use of his right knee ( Insurance Law § 5102[d] ). Although defendants' medical expert noted some limitations in range of motion in plaintiff's right knee, he attributed this to plaintiff's preexisting, degenerative knee condition and obesity, and found no objective evidence of disability (see e.g. Macdelinne F. v. Jimenez, 126 A.D.3d 549, 551, 6 N.Y.S.3d 40 [1st Dept. 2015] ). In addition, the expert relied on plaintiff's own post-accident X-ray showing no traumatic changes and an MRI of his right knee, taken 13 days after the accident, showing tri-compartmental osteoarthritis, cartilage thinning, and other degenerative findings (see Rosa v. Delacruz, 158 A.D.3d 571, 71 N.Y.S.3d 55 [1st Dept. 2018], affd 32 N.Y.3d 1060, 87 N.Y.S.3d 550, 112 N.E.3d 856 [2018] ; Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 993 N.Y.S.2d 1 [1st Dept. 2014], affd 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2015] ).
In opposition, plaintiff failed to raise an issue of fact. The affirmed report did not explain his physician's conclusion that plaintiff's right knee symptoms stemmed from the subject accident, rather than from his osteoarthritis (see Bogle v. Paredes, 170 A.D.3d 455, 95 N.Y.S.3d 193 [1st Dept. 2019] ; Ogando v. National Frgt., Inc., 166 A.D.3d 569, 87 N.Y.S.3d 159 [1st Dept. 2018] ). Furthermore, the physician failed to reconcile other medical records showing an absence of significant limitations in plaintiff's right knee shortly after the accident (see Colon v. Torres, 106 A.D.3d 458, 459, 965 N.Y.S.2d 90 [1st Dept. 2013] ).
Defendants' showing that plaintiff's injuries were not causally related to the accident defeats his 90/180-day claim (see Henchy v. VAS Express Corp., 115 A.D.3d 478, 480, 981 N.Y.S.2d 418 [1st Dept. 2014] ). In addition, plaintiff's bill of particulars alleges that he was confined to his bed and home for only 49 days after the accident (see Hospedales v. "John Doe, " 79 A.D.3d 536, 537, 913 N.Y.S.2d 195 [1st Dept. 2010] ), and there is only his testimony, and no objective medical evidence, to substantiate his claim that he was unable to work or perform activities of daily living (see De La Rosa v. Okwan, 146 A.D.3d 644, 45 N.Y.S.3d 443 [1st Dept. 2017], lv denied 29 N.Y.3d 908, 2017 WL 2367334 [2017] ).