| Acosta v Alexandre |
| 2010 NY Slip Op 00909 [70 AD3d 735] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Abigail Acosta, Respondent, v Pierre J. Alexandre,Appellant. |
—[*1] Arze & Mollica, LLP, Brooklyn, N.Y. (Raymond J. Mollica of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), datedFebruary 26, 2009, as denied those branches of his motion which were for summary judgmentdismissing the plaintiff's claims of serious injury under the permanent loss, permanentconsequential limitation of use categories of Insurance Law § 5102 (d), and significantlimitation of use on the ground that the plaintiff did not sustain any such serious injuries withinthe meaning of that statute.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the defendant's motion which were for summary judgment dismissing the plaintiff'sclaims of serious injury under the permanent loss, permanent consequential limitation of use, andsignificant limitation of use categories of Insurance Law § 5102 (d) on the ground that theplaintiff did not sustain any such serious injuries within the meaning of that statute.
The defendant met his prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triableissue of fact.
The affirmation of Dr. Mark S. McMahon, one of the plaintiff's treating physicians, wasinsufficient to raise a triable issue of fact since he noted only an insignificant limitation in theplaintiff's left knee one month after the subject accident (see Trotter v Hart, 285 AD2d772 [2001]; Cabri v Myung-Soo Park, 260 AD2d 525 [1999]; Waldman v DongKook Chang, 175 AD2d 204 [1991]), and set forth no quantified range-of-motion findings ora qualitative assessment of the plaintiff's left knee on his recent examination of the plaintiff(see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Giannini v Cruz, 67 AD3d 638 [2009]; Taylor v Flaherty, 65 AD3d 1328[2009]; Barnett v Smith, 64 AD3d669, 671 [2009]; Shtesl vKokoros, 56 AD3d 544, 546 [2008]).
The medical records of Dr. Jon Greenfield concerning the plaintiff failed to raise an issue offact. Those records merely noted the plaintiff's subjective complaints of pain (see Dantini [*2]v Cuffie, 59 AD3d 490 [2009]; Ranzie v Abdul-Massih, 28 AD3d447 [2006]; Picott v Lewis, 26AD3d 319 [2006]), and noted normal range of motion in the left knee on the two occasionsDr. Greenfield tested that knee (seeDjetoumani v Transit, Inc., 50 AD3d 944 [2008]).
The magnetic resonance imaging report of Dr. Jacob Lichy concerning the plaintiff's leftknee, on its own, was insufficient to raise a triable issue of fact. That report merely noted theexistence of a partial tear of the plaintiff's anterior cruciate ligament. The mere existence of atear in a ligament is not evidence of a serious injury in the absence of objective evidence of theextent of the alleged physical limitations resulting from the injury and its duration (see Su Gil Yun v Barber, 63 AD3d1140, 1142 [2009]).
The plaintiff's affidavit also failed to raise a triable issue of fact (see Luizzi-Schwenk v Singh, 58 AD3d811 [2009]; Sealy v Riteway-1,Inc., 54 AD3d 1018 [2008]). Fisher, J.P., Santucci, Dickerson, Chambers and Lott, JJ.,concur.