| Glover v Capres Contr. Corp. |
| 2009 NY Slip Op 03047 [61 AD3d 549] |
| April 21, 2009 |
| Appellate Division, First Department |
| Nicole Glover, Respondent, v Capres ContractingCorporation et al., Appellants. |
—[*1] Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Christina M. Rieker of counsel),for respondent.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered May 7, 2008, whichdenied defendants' motion for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, and the motion granted. The Clerk is directed to enterjudgment in favor of defendants dismissing the complaint.
Defendants' orthopedic expert, Dr. Kerness, reported ranges of motion for the affected kneeand compared them to the norm. According to these tables, plaintiff suffered no range-of-motionlimitations. Dr. Kerness also performed numerous objective tests, all of which were negative,and his report established, prima facie, that plaintiff did not suffer a "significant" or "permanentconsequential limitation" with respect to the functioning of the knee. Plaintiff, in turn, failed toraise a triable issue of fact with regard to these categories of "serious injury" (Insurance Law§ 5102 [d]). The report of her chiropractor does not even address the knee injury, butfocuses instead on spinal limitations that are not alleged in the bill of particulars.
Defendants also established that plaintiff's injury did not fall within the 90/180-day categoryof the statute. The bill of particulars states that plaintiff was confined to home or bed for a periodof weeks, but does not indicate that such confinement was medically ordered. Plaintiff'sself-serving deposition testimony regarding her inability to work for a period of time isinsufficient to establish that she was prevented from performing her usual and customaryactivities for at least 90 of the 180 days following the accident (see Rodriguez v Abdallah, 51 AD3d590, 592 [2008]).
A knee fracture is an independent category of serious injury under the statute (see Joyce v Lacerra, 41 AD3d 236[2007]). Aware of this alleged fracture, Dr. Kerness not only found a normal range of motion,but diagnosed the injury as "resolved." Plaintiff argues that defendants failed to meet their initialburden because they never addressed the record evidence of a patellar fracture. That evidence,however, is equivocal. Only one of the unsworn X-ray reports, dated seven months after theaccident, notes a healing patellar fracture. The other (contemporaneous) reports were equivocaland call for confirmation via clinical examination or further studies. The MRI report of Dr.Campbell, which defendants were entitled to rely on (see Newton v Drayton, 305 AD2d303 [2003]), found a contusion, but no recognition of the clinically described patellar [*2]fracture, and no cortical offset was observed. He recommendedcorrelation with radiograph or other CT scanning to detect the presence of a fracture not yetidentified.
Dr. Campbell's report was sufficient to establish, prima facie, that plaintiff had not sustaineda fracture. In turn, plaintiffs failed to raise a triable issue of fact. The affidavit of plaintiff'schiropractor did not address the injury to the right knee. The contemporaneous X-ray reports areequivocal regarding the existence of a fracture and are in any event inadmissible (Grasso vAngerami, 79 NY2d 813 [1991]). The only reference to a fracture is in the September 15,2006 report of the X ray of the right knee, which detects "a transverse sclerotic line. . . across the superior patella consistent with healing patellar fracture." Theimpression repeats: "Healing patellar fracture." In addition to this report being unsworn, itcannot be determined who interpreted the X ray or whether it became a part of plaintiff's medicalrecord. There is no other evidence of a fracture, admissible or otherwise, since neither plaintiff'smedical records nor those of her treating physicians are presented. There is no report referencingthese findings, adopting them or correlating them with physical findings. Plaintiff has thus failedto demonstrate that she sustained a serious injury (see O'Bradovich v Mrijaj, 35 AD3d 274 [2006]).Concur—Friedman, J.P., Sweeny, Catterson, Renwick and Freedman, JJ.