| Gibbs v Hee Hong |
| 2009 NY Slip Op 05171 [63 AD3d 559] |
| June 23, 2009 |
| Appellate Division, First Department |
| Andre Gibbs et al., Plaintiffs, and Tysheka Wiggins,Respondent, v Hee Hong et al., Appellants. |
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Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered January 16,2008, which, insofar as appealed from, denied defendants' motion for summary judgmentdismissing the complaint as to plaintiff-respondent, unanimously reversed, on the law, withoutcosts, and the motion granted. The Clerk is directed to enter judgment in favor of defendantsdismissing the complaint.
Defendants sustained their prima facie burden of establishing that plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) by submitting the affirmedreports of their expert orthopedist, indicating that plaintiff had normal range of motion in herright knee and that any injury had resolved, and of their expert radiologist, stating that there wasno evidence of acute traumatic injury to the knee (see Perez v Rodriguez, 25 AD3d 506,508 [2006]). Plaintiff's response failed to raise a triable issue of fact. The finding of a tornmeniscus by plaintiff's radiologist in an MRI taken shortly after the May 2006 accident does notrebut the finding of defendant's orthopedist, based on his May 2008 examination of plaintiff, of aresolved contusion and no disability (see Dembele v Cambisaca, 59 AD3d 352, 352[2009]; Hoisington v Santos, 48 AD3d 333, 334 [2008]); a torn meniscus, standingalone, is not evidence of a serious injury (Dembele). Moreover, plaintiff's radiologist didnot link the torn meniscus to plaintiff's accident and indeed offered no opinion on causationwhatsoever (see id.; Medley v Lopez, 7 AD3d 470 [2004]). Nor is an issue offact raised by the report of plaintiff's treating physician of her August 2008 reexamination ofplaintiff, where the report does not identify the objective tests she used to measure plaintiff'srange of motion, does not explain the improvement in the range of motion in plaintiff's knee overthe course of her treatment, and otherwise fails to indicate the significance of plaintiff'slimitations (see Dembele; Nagbe v Minigreen Hacking Group, 22 AD3d 326,327 [2005]). Plaintiff's statements that she could not run, go upstairs, or stand for [*2]very long do not constitute the loss of "substantially all" ofplaintiff's usual activities required to make a showing of serious injury (see Dembele).Concur—Gonzalez, P.J., Sweeny, Buckley, Renwick and Freedman, JJ.