| Dembele v Cambisaca |
| 2009 NY Slip Op 01409 [59 AD3d 352] |
| February 26, 2009 |
| Appellate Division, First Department |
| Mahamadou Dembele, Appellant, v Pedro A. Cambisaca,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered September 25,2007, which granted defendant's motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.
Defendant met his prima facie burden by demonstrating that plaintiff had not suffered aserious injury within the meaning of Insurance Law § 5102 (d) with, among other things,the affirmations of his orthopedist and neurologist (see Brown v Achy, 9 AD3d 30, 31 [2004]). Plaintiff's radiologist'saffirmation, based on a March 2005 MRI, could not rebut defendant's orthopedist's findings of aresolved sprain, and no disability, based on a September 2006 examination (see Thompson v Ramnarine, 40 AD3d360, 360-361 [2007]). Additionally, plaintiff's radiologist made no findings as to causationof the injury and did not link the torn meniscus to plaintiff's accident (see Otero v 971 Only U, Inc., 36AD3d 430, 431 [2007]; Medley vLopez, 7 AD3d 470 [2004]). At any rate, the existence of a partial meniscal tear,standing alone and with no evidence of any limitations caused thereby, is not sufficient toestablish "serious injury" (see Corneliusv Cintas Corp., 50 AD3d 1085, 1087 [2008]; Medina v Medina, 49 AD3d 335 [2008]). Moreover, even ifsubstantiated, plaintiff's complaints that, among other things, his knee hurts when he drives orwalks up more than four steps, do not constitute the loss of "substantially all" of his usualactivities required to make a showing of serious injury.
The affirmation of plaintiff's orthopedist also fails to raise an issue of fact as to permanentinjury, as he does not explain the significance of his findings with respect to plaintiff's left knee'srange of motion (ROM), or provide any comparison of his ROM findings with normal ranges(see Otero, 36 AD3d at 431). The orthopedist's conclusions are also inadmissible to theextent that they are based on the unsworn medical records and reports, since defendant's doctorsdid not submit copies of those unsworn papers with their reports, or expressly rely upon them informing their own conclusions (seeHernandez v Almanzar, 32 AD3d 360, 361 [2006]).
Without any substantiating documentation or affidavit from the employer, plaintiff's vagueand self-serving deposition testimony, that he did not return to work until "three or four [*2]months" after the accident, does not suffice to show a "seriousinjury" for purposes of the 90/180 day rule (see Burke v Torres, 8 AD3d 118, 119 [2004]).Concur—Saxe, J.P., Catterson, McGuire, Moskowitz and Acosta, JJ.