| Cruz v Aponte |
| 2009 NY Slip Op 01584 [60 AD3d 431] |
| March 5, 2009 |
| Appellate Division, First Department |
| Lourdes Cruz, Appellant, v Rosendo Aponte,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered December18, 2007, which granted defendant's motion for summary judgment dismissing the complaint onthe issue of threshold injury, unanimously affirmed, without costs. Appeal from order, samecourt and Justice, entered on or about December 17, 2007, which denied plaintiff's motion forsummary judgment on the issue of liability, unanimously dismissed, without costs, as academic.
Defendant met his initial burden of demonstrating absence of any permanent or significantconsequential physical limitations to plaintiff's right knee by submitting the affirmed reports of aradiologist who opined that no meniscal tears were shown in the MRI, and an orthopedist whofound no significant limitation in range of motion. The radiologist did observe a "vague linearsignal change . . . in the posterior horn of the lateral meniscus" that was "mostlikely indicative of grade II mucoid degenerative signal change," and the orthopedist noted that aminor limitation in range of motion was attributable to plaintiff's obesity.
In opposition, plaintiff submitted the affirmation of a physician who, relying on an MRIreport prepared shortly after the accident, found multiple meniscal tears of the right knee, forwhich surgery would be indicated if plaintiff could lose weight, and opined that the tears andlimitations were traumatic in origin. The physician also concluded, based on an examinationconducted more than three years after the accident, that objective tests demonstratedsignificantly limited range of motion. However, his examination, unaccompanied by the requisitequantitative assessment of range-of-motion limitations based on objective testingcontemporaneous to the time of the accident, was insufficient to raise an issue of fact as toserious injury (Lopez v Simpson,39 AD3d 420 [2007]). Nor did he address the findings of degenerative change in the kneemade by both defendant's radiologist and a radiographer who reported to the clinic that treatedplaintiff after the accident (Style vJoseph, 32 AD3d 212 [2006]; see Mullings v Huntwork, 26 AD3d 214, 216 [2006]).Accordingly, plaintiff failed to raise an issue of fact as to whether she suffered the type of injuryfrom the 2004 accident that constituted a permanent consequential limitation of the use of herright knee.[*2]
With respect to the 90/180-day serious-injury claim,defendant met his initial burden by relying on plaintiff's deposition testimony that she wasunable to perform her usual and customary activities for just five weeks following the accident.In opposition, plaintiff submitted an affidavit stating she was so restricted for fivemonths, but the affidavit clearly contradicts her deposition testimony, and appears tohave been tailored to avoid its consequences (see Blackmon v Dinstuhl, 27 AD3d 241 [2006]). Even assumingthe deposition testimony was in error, plaintiff's affidavit was unsupported by "competentmedical proof that directly substantiated the claim" that she could not perform substantially allher daily activities for 90 of the first 180 days following the accident due to a nonpermanentinjury or impairment as a result of the accident (see Uddin v Cooper, 32 AD3d 270, 272 [2006], lv denied8 NY3d 808 [2007]). Therefore, the alternate serious injury claim was also properly dismissed,rendering the issue of liability academic. Concur—Tom, J.P., Moskowitz, Renwick andFreedman, JJ.