| Solis v Silvagni |
| 2011 NY Slip Op 01568 [82 AD3d 1349] |
| March 3, 2011 |
| Appellate Division, Third Department |
| Sharon Solis, Respondent, v Kristin Silvagni,Appellant. |
—[*1] Finkelstein & Partners, L.L.P., Newburgh (Ann R. Johnson of counsel), forrespondent.
Spain, J. Appeal from that part of an order of the Supreme Court (O'Connor, J.), entered July16, 2010 in Ulster County, which denied defendant's motion for summary judgment dismissingthe complaint.
Plaintiff commenced this action alleging injury to her right knee resulting from avehicle/pedestrian collision in which the motor vehicle was operated by defendant. Specifically,on November 12, 2007, defendant was backing up her car when she hit plaintiff, causing plaintiffto lock her knees to avoid falling down. Defendant moved for summary judgment dismissing thecomplaint. Supreme Court partially granted the motion, dismissing plaintiff's serious injuryclaims of significant disfigurement and permanent loss of use, but denied the motion with regardto her claims of a permanent consequential limitation, significant limitation and the 90/180-daycategory of Insurance Law § 5102. Defendant appeals, seeking summary judgment onthose remaining claims.
Turning first to plaintiff's claim on the 90/180-day category of Insurance Law § 5102(d), we agree with defendant that summary judgment should have been granted. A serious injuryunder this category is "establish[ed] through objective medical evidence, [where] anonpermanent, medically-determined injury prevented [(the) plaintiff] from performingsubstantially all of [his or] her usual and customary daily activities for 90 of the first 180 daysfollowing the accident" (Shackett vNappi, 75 AD3d 709, 710 [2010] [internal quotation marks and citations omitted]; see Palmeri v Zurn, 55 AD3d1017, 1019 [2008]). "The curtailment of plaintiff's daily activities must be to a 'great extentrather than some slight curtailment' " (Baker v Thorpe, 43 AD3d 535, 537 [2007], quoting Licari vElliott, 57 NY2d 230, 236 [1982]).
In her deposition testimony, plaintiff admitted that after the accident, she continued to workfull time as a veterinary assistant. Although she claims that she suffered limitations at work, inher housework and in recreational activities, the alleged limitations are not distinguishable fromlimitations which she admitted began after her involvement in a prior accident (see Shackett vNappi, 75 AD3d at 711).[FN*]Indeed, plaintiff's 90/180-day claim in this action essentially is premised on limitations sheexperienced following surgery to her right knee; however, this surgery was not performed untilMarch 2008, 136 days after the accident. Accordingly, as plaintiff has offered proof showing onlythat she was prevented from performing substantially all of her usual daily activities for 44 of thefirst 180 days following the accident, her 90/180-day claim should have been dismissed (seeShackett v Nappi, 75 AD3d at 711; Clements v Lasher, 15 AD3d 712, 713-714 [2005]; Dongelewic v Marcus, 6 AD3d943, 944 [2004]).
Likewise, we conclude that defendant was entitled to summary judgment on the permanentconsequential and significant limitation of use serious injury categories (see InsuranceLaw § 5102 [d]). "[I]n order to establish a permanent consequential limitation or asignificant limitation of use, the medical evidence submitted by plaintiff must contain objective,quantitative evidence with respect to diminished range of motion or a qualitative assessmentcomparing plaintiff's present limitations to the normal function, purpose and use of the affectedbody organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029 [2003]; see Toure v AvisRent A Car Sys., 98 NY2d 345, 350-351 [2002]; Tandoi v Clarke, 75 AD3d 896, 897 [2010]; Vargas v Tomorrow Travel & Tour,Inc., 74 AD3d 1626, 1627-1628 [2010]; Dean v Brown, 67 AD3d 1097, 1098 [2009]). We agree withdefendant that plaintiff failed to proffer any quantitative evidence or qualitative assessment thatcould support a finding of a permanent or significant limitation of use. Specifically, plaintiffrelies upon the report and medical records of physician Kenneth Rauschenbach, who performedan arthroscopy on plaintiff's right knee following the accident. Prior to that procedure,Rauschenbach reported plaintiff's subjective complaints of pain, and his records reveal that heoriginally suspected a medial meniscus tear. However, an MRI and observations duringarthroscopic surgery instead revealed significant degeneration, chondral defect, a small lateralmeniscus tear but no large tears.
Defendant also proffered the report of physician Howard Luks, who examined plaintiff inOctober 2008 and reviewed Rauschenbach's records. Luks noted Rauschenbach's findings and theMRI report and concluded that plaintiff had degenerative changes which preexisted the accident.Specifically, he reported "no effusion [and] two-well healed arthroscopy portals . . .There is no pain with patellar compression [and] no pain over the lateral or medial patellaerfacets," and only mild medial joint line pain and mild pain over the medial condyle. SupremeCourt noted this evidence but found that because Luks had not discussed the significance of the[*2]small lateral meniscus tear shown in the MRI or the cartilagedefect reported by Rauschenbach, defendant had not met her burden of demonstrating thatplaintiff had failed to proffer sufficient proof of a serious injury under the permanent andsignificant limitations of use categories.
We disagree. Defendant did not need to rely on Luks's opinion to meet her burden of proofbecause the evidence of injury in the MRI and Rauschenbach's records, albeit objective, is notenough to meet the requirements of these specific statutory categories of serious injury (see Shvartsman v Vildman, 47 AD3d700, 701 [2008] [tear in tendon, alone, not sufficient evidence of serious injury]). Plaintiffsubmitted no proof of a specific limitation on her range of motion; indeed, plaintiff's range ofmotion is reported as full by both Rauschenbach and Luks. Further, although plaintiff's subjectivecomplaints of pain are noted, Rauschenbach provided no description or qualitative assessment ofplaintiff's limitations before or after the surgery. Accordingly, summary judgment should havebeen granted on the permanent loss of use and significant limitation of use categories as well(see Licari v Elliott, 57 NY2d at 239-240; Vargas v Tomorrow Travel & Tour,Inc., 74 AD3d at 1627-1628; Palmeri v Zurn, 55 AD3d at 1019; Motrie v Reid, 45 AD3d 941, 943[2007]; Daus v Cassavaugh, 17AD3d 837, 838-839 [2005]; John v Engel, 2 AD3d at 1029).
Mercure, J.P., Peters, Malone Jr. and McCarthy, JJ., concur. Ordered that the order ismodified, on the law, with costs to defendant, by reversing so much thereof as partially denieddefendant's motion; motion granted in its entirety, summary judgment awarded to defendant andcomplaint dismissed; and, as so modified, affirmed.
Footnote *: Plaintiff was involved in motorvehicle accidents in October 2006 and October 2007. She commenced separate actions allegingInsurance Law § 5102 serious injuries stemming from each of these accidents as well.